On the petition of the defendant Lydecker the United States was required to show cause why the indictment against the defendants should not be quashed on the ground: First, that books and papers were illegally seized from the custody of the petitioner by Post Office Inspector Mulherin; and, second, that an incriminating confession was extorted from him prior to his arrest. It is demanded that the illegally seized papers and documents, together with the confession, should be returned to the petitioner, or the confession. suppressed, and inspection of the grand jury minutes had by the defendants.
The affidavit of the petitioner tends to show that a confession or written admission of a conspiracy to defraud the United States, signed by him, was procured by intimidation, promises of leniency, force, and under duress, in violation of his constitutional rights, and that such con fession and seizure of papers was and is the basis of the indictment.
It is claimed that the affidavits in opposition show that the petitioner confessed and admitted Ms participation in the fraud of the United States freely and voluntarily, without any threats or promises to induce the confession.
f 1 ] If the petitioner’s version of the restraint and cross-questioning and promises is true, his constitutional rights unquestionably were
[2] On the theory that the moving affidavits disclose a violation of petitioner’s constitutional rights it is insisted that under the doctrine of Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319, Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, Adams v. N. Y., 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575, Wiggins v. U. S. (C. C. A.) 272 Fed. 41, and Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. -, the confession must be returned to the petitioner or suppressed before trial. But the authorities cited do not so hold. In them the court dealt with the unlawful seizure of books and papers or other subjects of evidence illegally taken, but they do not, either expressly or by implication, require the return of a signed confession, even though made in violation of constitutional rights. Although it is true that seizing one’s books and papers and extorting a confession of crime to be used on the trial are both violations of fundamental rights, yet these personal rights and guaranties are not controlled by the same evidential rule. The principle of return of documents and property illegally taken from the accused is based upon the assumption that their seizure was due to an unreasonable and unlawful search and seizure, made without due process of law, while a confession or the admission of crime is usually an oral narration or expression; not infrequently reduced to writing by the officer or person to whom the confession or admission is made, and retained by him for use at the trial. Such a confession may be impeached upon the trial; and, unless it is shown by the government to have been freely and voluntarily made without inducements, threats, or promises of any kind, it will not be received as evidence. The learned counsel for the defendant concedes that whether a confession was voluntarily made or not depends upon the particular facts of each case, and that the facts are usually involved in doubt until they have been ascertained. But this may only occur at the trial.
[3-5] In Wilson v. U. S., 162 U. S. 623, 16 Sup. Ct. 895, 40 L. Ed. 1090, it is ruled that the fact that an accused was in custody does not render hfs confession involuntary, nor is it necessary that he should have been warned that what lie said would be used against him. It is sufficient if the confession was voluntarily made, though he was not warned or advised that he had the right to remain silent. Not to have had the aid of counsel, or that the confession was made to an officer while in custody, or drawn out by cross-questioning put to the accused, and that Pinkerton detectives and other police officers were called in to assist in the questioning or to be present, or that he was confined in the police station and on the next day requestioned, are all matters bearing upon his asserted involuntary incriminating statement. All the facts and circumstances are to be taken into account, but, in view of
The case of U. S. v. Kallas (D. C.) 272 Fed. 742, does not support defendant’s broad contention. There a hearing had been had before a United States Commissioner, who held tlie accused for indictment. Upon examining the evidence, on application for a writ of habeas corpus, and before indictment, the court held that the confession of the accused should not have been received by the Commissioner, on tlie ground that it was in violation of his constitutional rights, and since there was no independent evidence to sustain the charge the relator was released from custody.
[0] Do the circumstances disclosed herein entitle the defendants to inspect the grand jury minutes? Inspection of grand jury minutes should only be had as the adjudications uniformly hold, where it clearly appears that the indictment was found solely upon incompetent or illegal evidence, or, as Judge Wallace said in U. S. v. Farrington (D. C.) 5 Fed. 343, “in willful disregard of the rights of the accused.” It is not questioned that aside from the confession there was competent evidence before the grand jury as a basis for the charge. In view of the circumstances as disclosed herein I would incline towards permitting an inspection of the minutes for the purpose of ascertaining wheLher the confession alone was the basis for the indictment, but it appears that no grand jury minutes were kept, and. the United States attorney stated at the argument that there was competent evidence before the grand jury additional to the confession. An order for the inspection of the grand jury minutes would appear useless, and is therefore denied, while the question as to whether the confession was obtained in violation of constitutional rights is reserved until the trial.
[7-8] The next question arises over the seizure of the papers and documents by and with petitioner’s consent as the government claims, but without his consent and by compulsion as claimed by the petitioner. It is contended in opposition to the return that as the post office inspector was not an officer of this court, a summary order, directing the return of seized papers and documents, should not issue against him. The cases of In re Chin K. Shue (D. C.) 199 Fed. 282, and In re Weinstein (D. C.) 271 Fed. 5, do not require a denial of the request. In the Shue Case the customs inspector seized the books and papers under a search warrant authorized by section 3066, R. S. (Comp. St. §' 5769), and it was held that the seizure was not in a judicial proceeding, and the collector’s custody would only be regarded as the custody of the court after forfeiture proceedings were taken. In the Weinstein Case the evidence seized was to be used before a board of special inquiry in
The motions of the petitioner are denied except that the papers seized are required to be returned to him.