The opinion of the court was delivered by: BYERS
This is a defendants' motion seeking various forms of relief, as follows:
1. An order declaring unreasonable, illegal and void the search and seizure later to be discussed.
2. Directing the return of all books, papers, etc., seized by the agents and representatives of the United States government, etc.
3. Directing that any and all of the said documents be suppressed.
4. Dismissing the indictment on the ground 'that there was illegally obtained evidence before the grand jury.'
5. Permitting the defendants to inspect the minutes of the grand jury so far 'as they relate to the proceedings resulting in the return of the indictment herein' by reason of the said illegal search and seizure.
6. Directing that a hearing be held in connection with the said motion.
Hearings were held on December 8, 1958, December 22, 1958, December 23, 1958 and April 2, 1959.
The delay between the last two mentioned dates was arranged for the convenience of counsel.
As to number 4 above, it should be noted that a motion to dismiss the indictment was denied by Judge Rayfiel under date of November 6, 1958 (D.C., 167 F.Supp. 211).
As to subdivision 5, nothing was developed at this hearing to justify permitting the defendants to inspect the minutes of the grand jury; and as to that, the motion is denied.
Subdivisions 1, 2 and 3 have to do with occurrences at the residence and place of business of the individual defendant (80-20 Lefferts Boulevard, Kew Gardens, in the Borough of Queens) on March 19, 1957. The defendant, Kurt Weishaupt, is a member of a partnership composed of himself and his wife, and for convenience will be referred to as an individual hereinafter.
He had been conducting business as an importer and exporter of postage stamps at the above address from December of 1947.
It was suggested during the hearing that at most the alleged offence, if committed, did not seriously affect the welfare of this nation. So much may be owned, but is not appropriate for consideration on the legal questions presented by this motion. A time may come when that argument will have its place.
On March 18, 1957, two agents of the Department of the Treasury, Foreign Assets Control Division, visited Gimbel's Department Store for the purpose of ascertaining certain facts with regard to the trading in Chinese stamps. Their names were Walter B. Gorsuch and Richard J. Hollas; they were both lawyers and had been connected with the Treasury Department in the capacity stated, for not less than three years prior to the last mentioned date. Gorsuch is now deceased, so that only the testimony of Hollas is presently available as to the matters concerning which the defendant complains.
The result of the interview at Gimbel's, which was conducted with one Jack Minkus (who was in charge of the Stamp Collectors Department at that store), was the disclosure that Chinese stamps had been purchased from the defendant for a number of years, and it was the source of his supply that the agents undertook to investigate. It should be mentioned that Minkus was requested not to apprize the defendant of the said interview.
On the following morning Gorsuch telephoned the defendant, requesting an interview with the latter concerning the importation of Chinese stamps, and after the defendant had requested a postponement, he agreed to call at the office of the agents after Gorsuch explained that he would like to accompany the defendant to the latter's place of business.
The defendant met Gorsuch and Hollas outside the United States Court House in Foley Square, and the defendant drove the agents to his home and place of business.
There is a conflict in testimony as to whether the agents exhibited evidence of their authority to the defendant at the time that they entered his automobile, Hollas' being in the affirmative and the defendant's in the negative. As to this conflict the testimony of Hollas is accepted, and it is found that the defendant was apprized of the official status of the agents at the inception of said automobile trip.
After the defendant's first telephone conversation with Gorsuch, he telephoned to his lawyer, but was unable to speak to him because of the latter's absence from his office. Thus, before the defendant met the agents at all, he realized that it might be wise to secure legal advice as a preliminary to any interview with the agents.
During the said drive, defendant and Gorsuch had discussed stamp collecting in general, the latter having stated his personal interest in that subject. On arrival at the defendant's residence, the agents were invited by him to enter, and the three men arranged themselves around the dining room table; the defendant asked Gorsuch's reason for the visit, and the latter replied that he should like to know if the defendant imported Communist Chinese stamps, and the answer was negative; that he had sold Chinese packets to Gimbel's Stamp Department which he had purchased from various suppliers, the principal one being Oriento Stamp Company of Hong Kong; another was H. J. DeWitt in Amsterdam, Holland, and the third, the Empire Stamp Company in Toronto, Canada.
Gorsuch then asked the defendant to produce the invoices of dealings with the above, and also the ...