Gibbons and Becker, Circuit Judges, and Dumbauld, District Judge.*fn*
James W. Busk appeals from a judgment of sentence imposed following his conviction by a jury of conducting an illegal lottery in violation of 18 U.S.C. § 1955 (1982). He contends that the court erred in denying his motion to dismiss the indictment. He also contends that the court erred in denying his motion to suppress evidence comprising or obtained from return information within the meaning of the Internal Revenue Code. We affirm.
The Motion to Dismiss the Indictment
Busk was tried and convicted of violating 18 U.S.C. § 1955 once before. Because that conviction was based upon illegally obtained evidence which should have been suppressed, this court reversed the conviction and remanded for a new trial. United States v. Busk, 693 F.2d 28 (3d Cir. 1982).
Following the remand Busk moved to dismiss the indictment on the ground that it was obtained by use, before the grand jury, of evidence which this court held should have been suppressed. The trial court denied the motion to quash. We hold that this ruling was correct.
It is established that the exclusionary rule with respect to evidence obtained in violation of the fourth amendment is inapplicable to grand jury proceedings, at least prior to the time a suppression order has been entered. United States v. Calandra, 414 U.S. 338, 342-55, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974). See also Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956) (inadequate or incompetent evidence before grand jury is no ground for quasing indictment); Lawn v. United States, 355 U.S. 339, 2 L. Ed. 2d 321, 78 S. Ct. 311 (1958) (use of evidence before grand jury obtained in violation of privilege against self incrimination is not ground for quashing indictment).
Relying on United States v. Serubo, 604 F.2d 807, 814-19 (3d Cir. 1979), Busk urges that use of illegally obtained evidence before a grand jury is a form of prosecutorial misconduct which warrants the sanction of dismissal of the indictment. In Serubo we held that such a sanction is an appropriate exercise of our supervisory authority over the misconduct of prosecutors appearing before federal grand juries with the intent to improperly prejudice the grand jurors against a defendant. Id. at 818-19. United States v. Calandra, supra, holds that the mere use of illegally obtained evidence does not so unduly prejudice grand jurors as to warrant dismissal. 414 U.S. at 353-55. If, following the grant of a suppression motion, a federal prosecutor were to present the same evidence to a grand jury, the application of the Serubo supervisory power rule might well be appropriate. But where, as here, the illegally obtained evidence is presented to the grand jury long before any suppression motion is made, that rule has no application. Thus the trial court did not err in denying Busk's motion to quash the indictment.
The Motion to Suppress Evidence
Busk's motion to suppress evidence comprising or obtained from return information within the meaning of the Internal Revenue Code presents an issue of first impression for this court. The motion was predicated on the confidentiality and disclosure provisions of section 4424 and 6103 of that Code. See 26 U.S.C. § 4424 (1976); 26 U.S.C. § 6103 (1976 & Supp. V 1981). Section 6103 deals with confidentiality of returns and return information generally. It provides that, except as expressly authorized by Title 26, no person who has had access to tax returns or return information shall disclose such information in any manner. 26 U.S.C. § 6103(a). Return information is defined broadly to include all data received by the Internal Revenue Service with respect to the possible liability of a taxpayer for ...