Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
October 27, 1930, an involuntary petition in bankruptcy was filed against appellant. A receiver was appointed, October 31, 1930, who took into custody books, papers, documents, and records belonging to the alleged bankrupt. February 2, 1931, a subpoena duces tecum was duly served on the receiver; he turned over such books, papers, documents, and records to the United States attorney for the Southern district of New York, where they remained until April 30, 1931. In the meantime, Bob was indicted on a charge of fraud in using the mails. He was tried October 6, 1931, and the books, papers, documents, and records in question were used on that trial. October 13, 1931, the petition in bankruptcy was dismissed before an adjudication. Thereafter, November 24, 1931, the trial judge entered an order impounding the books, papers, documents, and records in the custody of a special assistant to the Attorney General, as an officer of the court, and they have remained in the government's possession. Possession in the receiver in bankruptcy was lawful. Dier v. Banton, 262 U.S. 147, 150, 43 S. Ct. 533, 67 L. Ed. 915.
The Fourth and Fifth Amendments of the Constitution protect the appellant from compulsory production of incriminating documents in his possession, but this does not go as far as to forbid the use of documents of which he had lost possession, without wrongful participation by the government. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A.L.R. 1159; United States v. Hoyt (D.C.) 53 F.2d 881. The appellant was never compelled, at any time, to be a witness against himself or to produce any documents, records, or papers whose contents might incriminate him. These records were surrendered to the government pursuant to the order of the District Court by one whose right to their possession cannot be challenged. In re Fuller, 262 U.S. 91, 43 S. Ct. 496, 67 L. Ed. 881. The books were in possession of the government by virtue of an order impounding them.
While this application is entitled in a summary proceeding, the circumstances, determining whether it is an independent proceeding or a step in the trial of a criminal case, indicates that it is of the latter character, and therefore the order is not appealable. Cogen v. United States, 278 U.S. 221, 49 S. Ct. 118, 73 L. Ed. 275; In re Behrens (C.C.A.) 39 F.2d 561, 562.