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IN RE NWAMU

November 4, 1976

IN RE P.I. NWAMU and P.I. NWAMU ASSOCIATES, INC.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

 Claiming unlawful searches and seizures, in violation of the Fourth Amendment, P.I. Nwamu Associates, Inc. ("the corporation") and Patrick I. Nwamu move for the return and suppression of the "seized" evidence and to quash grand jury subpoena duces tecum served upon certain of the corporation's employees on April 15 and 16, 1976.

 The circumstances surrounding the employees' surrender of documents and other objects to agents of the Federal Bureau of Investigation, upon service of "forthwith" subpoenas upon them, raise substantial questions of unlawful search and seizure, as well as frustration of the power of the court, under Rule 17(c), Fed.R.Crim.P., to modify or quash a subpoena "if compliance would be unreasonable or oppressive." Among other things, the government contends that the movants consented to the agents taking the documents and objects involved. The movants deny consent.

 We granted and held an evidentiary hearing to resolve the issues. Based on the evidence there received, we now find the following facts:

 Special Agent Gulley of the FBI appeared at the corporation's offices on April 15, 1976 and served on David Singler, an officer of the corporation, a grand jury subpoena duces tecum issued by the clerk of this court on the same day. The subpoena was addressed to "ANY PERSON ON THE PREMISES OF P.I. NWAMU, INC. AT 489 FIFTH AVENUE, NEW YORK, N.Y." and commanded the person served to appear "forthwith" before the grand jury for the Southern District of New York, at Room 1401 of the Courthouse, to testify and to produce, "at the time and place aforesaid," certain files, documents and records.

 Singler attempted to communicate with the corporation's attorneys but was unsuccessful. He then located some of the files sought by the subpoena and discussed with Gulley the existence of another file, entitled "Felix Ijeh." Agent Gulley told Singler that it was a "forthwith" subpoena "and that the records should be produced immediately." Replying to Singler's question, Gulley told him he must turn the records over. When Singler asked what would happen if he did not, Gulley told him, "you would be in contempt of court." Gulley then told Singler that he "would take the documents in lieu of his appearance before a federal grand jury." Confronted with the agent's directions and threats, Singler surrendered the documents to Gulley, who took them not to the grand jury "forthwith" but straight to FBI headquarters in Manhattan.

 The next morning, April 16, 1976, Special Agent Chandler, accompanied by two other agents, appeared at the corporation's offices with several more subpoenas. Two were subpoenas duces tecum, again returnable "forthwith." One called for the "Felix Ijeh" file and was served on Singler. Another called for the corporation's "Selectric" typewriter balls and was served on Madelyn Hill, a secretary employed by the corporation. A third subpoena, for personal appearance only, was served on Patrick Nwamu, the corporation's president.

 Singler obtained a file marked "Felix Ijeh." Hill produced two typewriter balls, one right from the typewriter she was then using, when Chandler told her "what it [the subpoena] calls for is the IBM Selectric typewriter ball that you have in that machine." When Hill asked how she could continue typing, Chandler replied that she could "call the people who have the service contract on your typewriter and ask them to give you a new one, explain what happened."

 Possession of the "Felix Ijeh" file and the typewriter balls was surrendered to Chandler at some point. Chandler was called into Singler's office before he left the premises, however, and spoke on the telephone with Mr. Runes, Nwamu's attorney. Chandler testified:

 
"I told him [Runes] that I had just served a forthwith subpoena for the typewriter ball and for the Felix Ijeh file.
 
I said, 'They are forthwith subpoenas and I have offered Mr. Singler and Miss Madeleine Hill transportation down there so they can get back as quickly as possible.'
 
He advised me that there is no such thing as a forthwith subpoena and they are not going anywhere, that they are -- neither is the file. Nothing is to leave that office.
 
I advised him I was an emissary of the court. I already had possession of the file, had the ...

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