Before CHASE, Chief Judge, and FRANK and HINCKS, Circuit Judges.
The appellant, before any criminal proceedings had been instituted against him, obtained from the court below an order requiring the United States District Attorney to show cause at a session of the court to be held on April 22, 1953, why an order should not be made suppressing evidence claimed to have been illegally obtained by the government, restraining the United States Attorney from submitting such illegally obtained evidence to the Grand Jury, and for other relief. The hearing thereon was held on April 22, 1953, as the show cause order provided. On May 5, 1953, on a written Memorandum Decision, the judge ordered that the appellant's motion, which had initiated the show cause order, be dismissed as having an insufficient basis in law and in fact and as lacking in equity. The dismissal was stated to be "without prejudice." And it is from this order of dismissal that this appeal is taken.
Appellant's "motion" was in effect a complaint initiating a civil action seeking suppression of evidence said to have been illegally obtained and to restrain the United States Attorney from presenting such evidence to the grand jury. The suit thus began before any criminal proceedings by the government against appellant had been instituted, and his appeal was therefore not from an interlocutory order entered in the course of a criminal suit. Accordingly, the order denying his motion was a final and appealable order.*fn1
After entry of this order, and after the appellant had filed his notice of appeal, an indictment against the appellant was filed, as we were told in the arguments on the appeal. The filing of the indictment does not, we think, render the appeal moot. In United States v. Poller, 43 Fed. (2d) 911 (C.A. 2), after Poller had made a motion to return seized documents, he was indicted; this court held that that fact did not affect the government's appeal from the order, subsequently entered, granting the motion, saying (p. 912), "Conceivably it might be held that the proceeding became merged in the indictment, but the result would be to make the appealability of the order depend upon the diligence of the prosecution of the proceeding or of the judge in deciding it, either of which is an unsatisfactory test. It seems to us more reasonable to say that it is the time of its initiation which counts * * * We hold therefore that it is the beginning of the proceeding which determines the appealability of the order, and that, since this was before indictment, we have jurisdiction of the cause." See also Centracchio v. Garrity, 198 Fed. (2d) 382, 389 (C.A. 1) an appeal from an order dismissing a motion like that at bar, where the court said: "And though the finding of a true bill by the grand jury defeated one of the objects of petitioner in his motion to suppress, the petition did not thereby become entirely moot, for petitioner still remained interested in the relief sought in so far as it might be directed to the suppression of the evidence at the trial."
We come, therefore, to examine the judge's ruling on the merits. He entered the order to show cause on appellant's motion, in affidavit form, which alleged that, in reliance on a widely publicized policy of the government not to prosecute tax evaders who, prior to the time at which an investigation had been instituted, voluntarily disclosed their delinquency,*fn2 he had through his attorney made a voluntary disclosure of additional income for the five years 1946 to 1950 by letter dated May 15th; that then and thereafter he "had no knowledge" that any investigation of his income tax liability had been commenced by that time; that he had "no information that any investigation was instituted prior to his voluntary disclosure," and that he was "informed and believed" that his voluntary disclosure made on May 15, 1951 "precipitated the investigation." The motion further alleged on information and belief "that by virtue of clues and leads which were obtained as a result of my confession which was induced by a broken promise of immunity,"*fn3 the United States Attorney obtained information and records which he proposed, unless restrained, to submit to the grand jury.
In opposition to the appellant's motion, the United States Attorney on April 22, 1953, the day fixed for the hearing set by the show cause order, filed two affidavits, both by Special Agents of the Intelligence Division of the Bureau of Internal Revenue, purporting to be based on actual knowledge. One alleged that, because of newspaper publicity occurring on April 14, 1951 to the effect that the appellant had been arrested on a charge of contriving a lottery and maintaining a place of gambling, on April 16, 1951 the affiant had been assigned to make a preliminary investigation of the appellant's tax returns for the years 1946 through 1950. This affiant further alleged that on April 23, he consulted the Assistant District Attorney in charge of the State case against the appellant, obtaining from him some information about the case; that on April 26, 1951 he requisitioned the appellant's tax returns receiving them from the Collector of Internal Revenue on April 27, 1951; further that he checked records of Dun and Bradstreet relative to the appellant where he received further information; that on May 15, 1951 the investigation was transferred to the other Special Agent whose affidavit alleged that his assignment to investigate began on May 15, 1951 and that the file on the case was physically received by him on the next day.
These affidavits thus posed, as the crucial issue, the timeliness of the disclosure made in appellant's behalf on May 15, 1951, viz: whether or not the disclosure was made before a departmental investigation had been initiated. And so far as the record shows this issue was submitted for decision solely on the affidavits the contents of which are summarized above. On this submission of the issue we are all agreed that the record did not support an order granting the appellant's motion. For even if it were so that the appellant, when he made his disclosure on May 15, 1951, did not know, notwithstanding the publicity as to his arrest, that a federal tax investigation had already been initiated, and even if in April, 1953, when he brought the motion initiating this proceeding, he thought that his disclosure had precipitated the departmental investigation, it would not follow that his disclosure was timely. Only if, in fact no investigation had been begun, was his disclosure timely. United States v. Levy (D.C. Conn., 1951), 99 F. Supp. 529. The mere fact that the Department did not inform him and that he did not know that an investigation had been begun was irrelevant. Any holding to the contrary contained in the case of In re Liebster (D.C., E.D. Pa., 1950), 91 Fed. Supp. 814, we cannot approve. And so we are in complete agreement that if, on the record submitted, the judge below had gone no further than to deny the motion, we should have unanimously affirmed, thus leaving the matter pending in the District Court for such further proceedings as might be had therein.
But was the judge below justified in ordering a final dismissal of the motion even though his order was, as expressly stated, "without prejudice"? (This qualification was obviously made not to indicate a lack of finality in dismissing the pre-indictment motion but rather in recognition of the appellant's right to move de novo in any criminal case which might thereafter be instituted to suppress the evidence obtained through his disclosure and to quash the indictment on the ground of the immunity from prosecution claimed to flow from his disclosure.) Or should the judge below have gone no further than to deny the motion leaving it still in court for further hearing on the contested issue as to the timeliness of the disclosure?
As to this, a majority of the court holds that on the record as presented to us there is no showing that the dismissal ordered was erroneous. By the show cause order which issued on his own application the appellant was on notice that his application would be heard on April 22, 1953 and that his proofs in support thereof would then be taken. Nothing in said order suggested that the hearing thus set was to be a preliminary 4, 1953, that the motion was argued on April hearing only. It was noted in the caption of the judge's memorandum decision of May 4, 1953, that the motion was argued on April 22, 1953, the parties then appearing. So far as appears, the parties were then content to make a final submission of the issue as to the timeliness of the disclosure on the affidavits and counteraffidavits. That apparently is just what was done; the record fails to disclose the offer or receipt by either side of any evidence extraneous to the affidavits. We note that the government's affidavits were verified not until April 22; apparently they were filed at the opening of the session or a few hours before. If the appellant was surprised by these affidavits, of course he could have applied for a continuance to give him opportunity to meet their contents either by reply affidavits or by competent evidence. The record fails to show that any such application was made, still less that it was denied.
The majority of the court is therefore unable to see merit in the argument made on appeal, for the first time so far as the record shows, that the court below failed to give the appellant a hearing on the issue of the timeliness of the disclosure.*fn4 As we read the record, the appellant applied for a hearing, was accorded a hearing, and at the hearing, on learning that the government had knowledge of specific facts which if true completely undermined his position, waived the opportunity to offer evidence, and elected to submit the record of fact on the affidavits with argument as to the law. In so doing he led the judge to say in his memorandum: "That a preliminary investigation * * * began on April 16, 1951 * * * is not in dispute." Appellant on brief insists that in this the judge was wrong: that the investigation was in truth disputed. But when the appellant submitted his application, as the record shows, without unequivocal denial, by assertion or proof, of the specific affirmative allegations of the government's affidavits, the judge might properly understand that the government's assertions of the fact and detail of a prior investigation were indeed undisputed. And we think the judge was right in saying that the appellant's assertion of no knowledge of the investigation or of his belief that his own disclosure "precipitated the investigation," created no issues. For the issue as to the timeliness of the disclosure depended, as pointed out above, on the fact of a prior investigation, not on the appellant's absence of knowledge or belief as to that fact. In this sense, as the judge observed in his memorandum, there was indeed no triable issue framed by the affidavits.
The appellant also asserts on brief that "there is an issue of fact whether the alleged preliminary investigation was an investigation within the meaning of the voluntary disclosure policy." But the very statement of this contention shows that it is based upon the investigation alleged in the government's affidavits and posed only a question of law as to the effect of the facts thus alleged. As indicated above, we think the judge was right in his ruling on this question of law and in holding that the disclosure made not until May was not timely in view of the investigation begun in April.
It is not without significance, we think, that the appellant, who claims to be aggrieved because deprived of opportunity to present evidence, not only failed to offer evidence at the hearing or at an adjournment thereof which he might have obtained, but even now on appeal does not point to any facts helpful to him on the issue of timeliness which he could offer if by reversal of the order he were given another bite at the cherry. However that may be, the majority of the court thinks that in the situation disclosed by the record the judge was right in treating the appellant's case as finally submitted and hence ripe for a final order. And whether or not any issue as to the timeliness of the disclosure was raised by the affidavits, we think the judge was right in ordering a dismissal in reliance on the government's affidavits which had the hallmark of specificity and inherent credibility.
I dissent because I think the trial judge erred in dismissing Lapides' suit, as on a summary judgment, without according Lapides the opportunity to prove his case at a trial on oral evidence, including open-court crossexamination of adverse witnesses.
I say that the judge proceeded as if he were granting a summary judgment, because his opinion specifically states,*fn1 as the ground of his decision, that Lapides' "allegations raise no triable issue" - the words appropriate in granting summary judgment pursuant to F.R.C.P. 56(c), 28 U.S.C.A. That statement is crucial. For it shows that - contrary to what my colleagues suggest - the trial judge clearly understood that, if the affidavits disclosed a "triable issue of fact," Lapides would have been entitled to a trial.
That he called his pleading a "motion" is of no moment. As we said in Hadden v. Rumsey Products, 196 Fed. (2d) 92, 95 (C.A. 2), "Although Rule 3 states that an action is commenced by filing a complaint, it would be quite out of harmony with the spirit of Rule 1 to hold the appellees bound by the labels placed on the papers submitted to the district court." So, as my colleagues say, Lapides' so-called "motion" was actually a complaint - consisting in large part of his initial affidavit*fn2 - which, in a civil suit, sought an injunction to prevent the United States Attorney from obtaining an indictment against him through the presentation to the Grand Jury of certain evidence. My colleagues, in effect, concede that this complaint adequately stated a cause of action. It alleged (inter alia) the following: (1) The government had promised immunity from criminal prosecution to any tax-evader who, before an investigation had been instituted, voluntarily disclosed to the government additional tax liability. (2) Lapides, relying on that promise, made such a disclosure by a letter dated May 15, 1951, to which the appropriate government official replied on June 6 that the disclosure was considered voluntary in accordance with that promise. (3) Lapides is informed and believes that this "voluntary disclosure" of May 15 precipitated the investigation. (4) Through this disclosure, the United States Attorney had procured evidence which he proposed, despite the promise, to submit to the Grand Jury for the purpose of obtaining an indictment against Lapides for criminal tax evasion.
As I understand it, my colleagues agree that, if Lapides could have proved the alleged facts, he would have been entitled to the injunction he sought. For (a) the threat to break such a promise of immunity is a threat of unconstitutional conduct,*fn3 and (b) an injunction will be granted to prevent a prosecutor from using evidence, in violation of a man's constitutional rights, to obtain that man's indictment.*fn4 In such an injunction suit, the plaintiff, of course, has the usual right of any plaintiff to a trial on evidence, not on affidavits,*fn5 unless the record justifies a summary judgment.
But a motion for summary judgment must not be granted on affidavits when it appears, from the opposing affidavits, that there exists a genuine triable issue of fact turning on credibility. Especially is this so when, if such a motion were granted, the opponent of the motion would be deprived of the important rights at a "live" trial (1) to cross-examine adverse witnesses about crucial facts peculiarly within their knowledge and (2) to have the trial court observe their demeanor while testifying.
See 6 Moore, Federal Practice (2d ed. 1953) pp. 2059, 2067, 2070, 2110, 2121, 2133-2135, 2219, and cases there cited, including the following: Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620; Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 719; Colby v. Klune, 178 Fed. (2d) 872 (C.A. 2); Fogelson v. American Woolen Co., 170 Fed. (2d) 660 (C.A. 2); Toebelman v. Missouri-Kansas Pipe Line Co., 130 Fed. (2d) 1016, 1018 (C.A. 3); Sarnoff v. Ciaglia, 165 Fed. (2d) 167 (C.A. 3); Whitaker v. Coleman, 115 Fed. (2d) 305, 306 (C.A. 5); Gray Tool Co. v. Humble Oil & Refining Co., 186 Fed. (2d) 365, 367 (C.A. 5); Campana Corp. v. Harrison, 135 Fed. (2d) 334, 336 (C.A. 7); Walling v. Fairmount Creamery Co., 139 Fed. (2d) 318 (C.A. 8); Dulansky v. Iowa-Illinois Gas & Electric Co., 191 Fed. (2d) 881 (C.A. 8); Lane Bryant v. Maternity Lane, Ltd., 173 Fed. (2d) 559, 565 (C.a./ 9); Avrick v. Rockmount Envelop& Co., 155 Fed. (2d) 568, 571, 573 (C.A. 10).
The government filed affidavits of two government agents. Lapides contends on this appeal that these affidavits do not squarely clash with his affidavit. I shall assume, however, arguendo, that the trial judge would have been obliged to dismiss this suit on the merits if the statements contained in the affidavits of the government agents had been embodied in oral evidence at a trial and if the trial judge had then believed their testimony to be true. But the outstanding fact is that no such trial was held. Instead, the judge dismissed the complaint on the basis of the affidavits only. In his opinion explaining that dismissal, the judge said: "That a preliminary investigation of [Lapides'] tax return began on April 15, a month before the writing of the letter while it is alleged constituted a disclosure, is not in dispute. It is only asserted that [Lapides] had no information relative thereto. Such allegations raise no triable issue at this stage of the proceeding." If the judge's description of Lapides' allegations were correct, I would agree that a summary judgment would have been proper. For Lapides would not be entitled to immunity merely because, when he made the disclosure, he did not know that an investigation had been begun.*fn6
But the judge entirely overlooked Lapides' additional sworn statement: "I am informed and believe that my voluntary disclosure precipitated the investigation." If at a trial, Lapides proved that his disclosure had "precipitated the investigation," then, of course, he would prove that his disclosure in fact ante-dated the investigation - and he would therefore be entitled to a decision that the government was bound by the promise of immunity. Only, then, because the judge ignored that allegation could he conclude that there was "no triable issue."*fn7
There is an all-important difference between (1) Lapides' sworn allegation of lack of knowledge that any investigation was under way when he made his disclosure was not then under way and was thereby induced. For allegation (1) does not assert any compliance by Lapides with the offer of immunity. United States v. Levy, 99 Fed. Supp. 529. Allegation (2), however, does specifically assert such compliance. In suggesting that (1) and (2) have the same legal effect, my colleagues are wrong, I think.
Lapides' sworn allegation (in paragraph 19) that his disclosure antedated and precipitated the investigation was on information and belief. But that sufficed. For patently, Lapides could not know of his own knowledge that the investigation began after his disclosure. In Accardi v. Shaughnessy, 206 Fed. (2d) 897 (C.A. 2), a sworn habeas corpus petition stated, "on information and belief," facts as to conduct of the Attorney General. This statement was categorically denied in opposing affidavits filed by the government. A majority of this court, in affirming an order denying the habeas corpus petition, said that "the assertion of a mere suspicion or 'belief'" was insufficient. The dissenting opinion disagreed with that ruling, saying: "In a variety of circumstances, it has been held that such an allegation suffices where, as here, the asserted facts are thus not within affiant's personal knowledge" - citing, as illustrative, Berger v. United States, 255 U.S. 22, 34-35; Kelly v. United States, 250 Fed. 947, 948-949 (C.A. 9); Creekmore v. United States, 237 Fed. 743 (C.A. 8) - and continued: "I think the district court should be directed to afford relator an opportunity to prove those facts, just as in the Root Refining case*fn8 the Supreme Court ordered a trial of the movant's charge of bribery." The Supreme Court, having granted certiorari, after referring to the ruling (by this court's majority) that "the assertion of 'mere suspicion and belief' * * * does not require a hearing," reversed with directions to the district court to hold a hearing on oral testimony at which petitioner would have the chance to prove the alleged fact. See also Carroll v. Morrison Hotel Corp., 149 Fed. (2d) 404, 406 (C.A. 7); 2 Moore, Federal Practice (2d ed.) § 8.13 (p. 1654 note 22) and § 12.08.
Lapides' affidavit disclosed the basis of his "information and belief": Attached as an exhibit to his affidavit is a letter of June 6, 1951 to Lapides' lawyer from Baradel, the "Special Agent in Charge," which says: "This is to advise you that after a review of the facts in the case, this disclosure will be considered voluntary provided there is a full and complete disclosure on the part of this taxpayer and full cooperation as indicated in your letter" (i.e., the letter of Lapides' lawyer of May 15, 1951).*fn9 Accordingly, there was an ample and reasonable basis for his "information and belief."
It follows that Lapides' sworn allegation that his disclosure precipitated the investigation must be read without any diminution of its effect because of the phrase "on information and belief." If, without filing any affidavits, the government had moved to dismiss the complaint. it would have been necessary to take Lapides' allegation as true,*fn9a and consequently to deny the motion.
Assuming, arguendo, that the affidavits of the government agents flatly contradicted Lapides' affidavit, was it necessary for Lapides, after the filing of the agents' affidavit, in order to preclude a summary judgment adverse to him, to file a further affidavit denying what the agents said? Surely not. He could do no more than to repeat what he had already sworn to, i.e., that he was informed of, and believed, facts contradictory to what the agents said; and for Lapides to repeat that statement in a reply affidavit could have served no purpose.
Assuming that the agents' affidavits flatly clashed with Lapides' affidavit as to the date when the investigation commenced and how it was initiated, he had the right (as I have said) to a trial at which he could, in open court, cross-examine the government agents on the issue, and at which the trial judge would observe their demeanor while testifying, so as to be able to determine their credibility.
By way of answer, my colleagues argue that Lapides, by not explicitly demanding such an open-court trial, "waived" it. This is a curious argument. Up to now, no court has ever held that, in order to have a trial, a plaintiff must expressly ask for it. Nor has any court held that, if a defendant moves for summary judgment and it appears that there is a genuine issue of triable fact, nevertheless the judge can properly enter judgment for the defendant unless the plaintiff then declares he wants to go to trial.
To round out the discussion, this should be added: "The moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts. * * * The courts hold the movant to a strict standard. * * * Since it is not the function of the trial court to adjudicate genuine factual issues at a hearing on the motion for summary judgment, in ruling on the motion all inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion. And the papers supporting movant's position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the movant has satisfied his burden." See 6 Moore, Federal Practice (2d ed. 1953) pp. 2123-2125, and the numerous cases there cited.
The trial judge made two other mistakes in addition to the mistake which I have already described. In his opinion he said that determination of the issue tendered by Lapides "would require an examination into the mental operations of the investigating agents." The judge added, "No precedent is cited which would justify such a course in the proceeding here." That position is untenable. Courts frequently have to examine the "mental operations" of witnesses in many kinds of situations, including those like that here. I concur in the remark in Lapides' brief that "if judicial inquiry as to the circumstances under which the evidence [as to Lapides' tax evasion] was acquired in this case could be cut off [without a trial], it would afford the opportunity for shocking administrative conduct." It would negate many of the decisions holding that a court will grant a pre-indictment injunction to suppress unconstitutionally-procured evidence.*fn10
This mistake of the judge ties into another: He speaks of his inability to give the requested relief "at this stage of the proceeding." This shows, I think, that he dealt with this suit in the belief that it was but a "stage" in a criminal proceeding. That such was his belief is further indicated by the fact that, although he held the suit "insufficient in law" and "lacking in equity," his dismissal was "without prejudice." This belief was in error: The cases hold that an action like Lapides' is an independent suit, not a part of a criminal proceeding which may later be instituted.*fn11
It may be suggested that perhaps the hearing on affidavits which the judge held should be regarded as a hearing of a motion for a preliminary injunction. If so, the judge had discretion to deny that preliminary relief. But, unless, on considering such a motion, a judge holds that the complaint itself, in the light of plaintiff's admissions, reveals no merits, he may not dismiss the complaint. The judge did so hold; but in doing so, I think that, for reasons canvassed above, he erred.
My colleagues hold, and I entirely agree, that the appeal did not become moot when, pending appeal, the government indicted Lapides. In United States v. Poller, 43 Fed. (2d) 911, 912 (C.A. 2), this court said (per L. Hand, J.): "If this proceeding had been concluded before indictment found, the order would certainly have been appealable. Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417; Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 475. The point here taken is that Poller was indicted before final submission of the proceeding; that immediately upon indictment found, it became a part of the prosecution. * * * Conceivably it might be held that the proceeding became merged in the indictment but the result would be to make the appealability of the order depend upon the diligence of the prosecution of the proceeding or of the judge in deciding it, either of which is an unsatisfactory test. It seems to us more reasonable to say that it is the time of its initiation which counts, and for this we have the language of the opinion in Cogen v. United States, 278 U.S. 221, 225, 49 S. Ct. 118. * * * We hold therefore that it is the beginning of the proceeding which determines the appealability of the order, and that, since this was before indictment, we have jurisdiction of the cause."
In this connection, the following should be noted: If a trial judge dismisses an injunction suit and, pending appeal (without a supersedeas) the defendant takes the very action which the plaintiff sought to enjoin, then, if the upper court reverses, the trial court, on plaintiff's request, will require restitution of the status quo ante.*fn12 So here, if (as I think we should) we now reversed and remanded for a trial, and if, after such a trial the district court should hold that, on the facts, an injunction should have issued before indictment, it would order the prosecutor to quash the indictment.*fn13
"County of New York, ss.:
"Max Lapides, being duly sworn deposes and says:
"(1) This affidavit is made by me in support of an application to suppress certain evidence which I believe to have been illegally obtained; to require the return of certain books, papers, documents, and records; to restrain the United States Attorney from bringing before the Grand Jury such illegally obtained evidence; and for such further and different relief as this Court may deem just and proper.
"(2) Hon. Edmond Port, United States Attorney for the Northern District of New York, has stated that he intends to submit evidence to the Grand Jury in and for the Northern District of New York, at its current term, for the purpose of obtaining against me an indictment charging me with income tax evasion in violation of § 145(b) of Title 26, U.S.C.
"(3) I am informed and I believe that some or all of the evidence which it is intended to present to the Grand Jury was obtained as a result of a confession which I made and clues and leads which I furnished under a promise of immunity by the Government of the United States, which the Government now refuses to honor. The circumstances under which I was induced to confess, the confession itself, and subsequent events so far as they are now known to me are set forth below.
"(4) At all times material to these proceedings it was the policy of the Government of the United States not to prosecute alleged tax evaders who, prior to the time at which an investigation had been instituted, voluntarily disclosed additional tax liability. This policy has been uniformly followed in all cases of alleged tax evasion. This so-called voluntary disclosure policy was widely advertised and it was intended that persons who might be guilty of tax evasion should take advantage of the immunity which they could obtain by disclosing additional tax liability, thereby saving the Government the expense and hazards of an investigation.
"(5) This policy was known to me prior to May 15, 1951. I had no knowledge (and I have none now) that any investigation of my income tax liability had been commenced by that time or for some time thereafter. In fact, as more fully set forth below, I had been informed in an official communication of the Bureau of Internal Revenue that a voluntary disclosure on my part would be accepted.
"(6) With the sole intent and purpose of making a voluntary disclosure I retained one Edward Riederman, an attorney who is experienced in tax matters, to advise me in connection with the disclosure and to communicate with the Bureau of Internal Revenue on my behalf.
"(7) Edward Riederman informed me that prior or about May 15, 1951, he had spoken to Walter P. Murphy, Assistant Special Agent in Charge of Intelligence. He told Mr. Murphy that he wanted to make a voluntary disclosure on my behalf. He was informed to address a letter to this effect to the Bureau of Internal Revenue.
"(8) Thereafter, on May 15, 1951, Mr. Riederman wrote a letter a copy of which is attached hereto and marked Exhibit 'A.'
"(9) Exhibit 'A,' as is evident from the stamp appearing on it, was received by the Bureau of Internal Revenue at 4:35 P.M. on May 15, 1951.
"(10) The receipt of Exhibit 'A' was acknowledged further in a letter dated May 16, 1951, a copy of which is attached hereto and marked Exhibit 'B.'
"(11) I am informed by Mr. Riederman and I believe that thereafter and prior to June 6, 1951, Mr. Riederman received a telephone call from the office of Assistant Special Agent in Charge, Murphy, asking him to supply the serial and block numbers appearing on the back of the cancelled checks with which I had paid my taxes. He was told that these numbers were wanted so as to enable the Bureau of Internal Revenue readily to locate the Collectors' Offices at which my tax returns had been filed and the returns themselves at those offices.
"(12) Thereafter, Mr. Riederman spoke to Mr. Francis Kennedy, Acting Assistant Special Agent in Charge, and supplied the numbers wanted, and the districts at which I had filed my tax returns.
"(13) I had supplied the checks, as well as all other information, to Mr. Riederman, my counsel, solely for the purpose ...