Milton L. Stern, Plaintiff-appellant, v. Thomas L. Robinson and United States of America, Defendant-appellees, 391 F.2d 601 (6th Cir. 1968)

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US Court of Appeals for the Sixth Circuit - 391 F.2d 601 (6th Cir. 1968) December 15, 1967
Certiorari Denied April 22, 1968
See 88 S. Ct. 1417

Carl H. Langschmidt, Jr., and Donald W. Pemberton, Memphis, Tenn. (Carl H. Langschmidt, Jr., Donald W. Pemberton, Ralph E. Kelly, Memphis, Tenn., on the brief), for appellant; Boone, Boone, Langschmidt & Pemberton, Memphis, Tenn., of counsel.

Henry L. Klein, Memphis, Tenn. (Thomas L. Robinson, U. S. Atty., Henry L. Klein, Asst. U. S. Atty., Memphis, Tenn., Mitchell Rogovin, Asst. Atty. Gen., Dept. of Justice, Tax Division, Washington, D. C., on the brief), for appellees.

Before CELEBREZZE, PECK, and McCREE, Circuit Judges.


JOHN W. PECK, Circuit Judge.

Plaintiff-appellant brought this action against the defendant agent of the Internal Revenue Service and the United States seeking the return of evidence obtained from him by the agent and an injunction enjoining the presentation of such evidence to a grand jury for the purpose of securing a criminal indictment against him. Although a formal order dismissing the complaint was not entered until after the returning of an indictment against the plaintiff-appellant, the evidence was presented to the grand jury and the indictment returned the day following the filing of the District Judge's memorandum decision, 262 F. Supp. 13, sustaining the appellees' motion to dismiss. The appeal to this court is from that order of dismissal.

Appellees have here filed their motion to dismiss the appeal on the ground, among others, that the order of the District Court is not appealable, and under our previous direction that motion was heard at the hearing of the cause on its merits. It is here determined that the order from which this appeal was perfected was interlocutory and unappealable, and that this court is "without appellate jurisdiction to review the order of the District Court declining to enjoin presentation of evidence to a grand jury." Austin v. United States of America, 353 F.2d 512 (4th Cir. 1962); see also Di Bella v. United States, 369 U.S. 121, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962). Therefore,

IT IS ORDERED that the motion of the appellees to dismiss should be and is granted, and this cause is hereby dismissed.