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UNITED STATES v. MCDONOUGH

March 3, 1967

United States of America
v.
William F. McDonough


Weber, District Judge.


The opinion of the court was delivered by: WEBER

WEBER, District Judge.

 William F. McDonough, listed as the Defendant in the above caption, has filed a Motion to Suppress Evidence under Federal Rule of Criminal Procedure 41, on the grounds that the evidence was illegally seized, without warrant and without probable cause.

 This Motion has been docketed as Miscellaneous No. 4151 because the criminal proceedings, U.S.A. v. William F. McDonough at No. 65-300 Criminal, has been terminated by a plea of guilty and sentence and the action has been concluded. The United States of America moves to dismiss the Motion to Suppress because there is no longer any criminal proceeding in existence. The purpose of the Motion to Suppress as stated is to prevent the use of the seized materials by the Internal Revenue Service in the determination of any civil tax liability.

 We are convinced that a Motion to Suppress under Federal Rule of Criminal Procedure 41(e) will not lie at this time. Motion to suppress must be timely made and usually before trial, or it is waived. United States v. Di Donato, 301 F.2d 383 [2nd Cir., 1962], cert. den. 370 U.S. 917, 82 S. Ct. 1557, 8 L. Ed. 2d 497.

 Furthermore, a motion to suppress evidence under Federal Rules of Criminal Procedure 41(e) is properly directed only to its use in a criminal prosecution against him. Lord v. Kelley, 334 F.2d 742 [1st Cir., 1964].

 Order

 AND NOW this 3rd day of March, 1967, Motion of the United States of America to Dismiss is GRANTED, and the Motion to Suppress is DENIED.

19670303

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