592 F2d 251 Simons v. United States

592 F.2d 251

Norman R. SIMONS and Catherine Simons, Plaintiffs-Appellants,
v.
UNITED STATES of America et al., Defendants-Appellees.

No. 78-1873

Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.

March 30, 1979.

Norman R. Simons, Catherine Simons, pro se.

Joe Alfred Izen Jr., Houston, Tex., for plaintiffs-appellants.

Jose A. Canales, U. S. Atty., Arthur R. Amdur, Asst. U. S. Atty., Houston, Tex., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Chief, Crombie J. D. Garrett, David E. Carmack, Tax Div., Dept. of Justice, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, GEE and HILL, Circuit Judges.

PER CURIAM:

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1

Appellants Norman and Catherine Simons became the subject of an IRS audit in 1977 concerning their income tax returns for 1975 and 1976. In August 1977 a criminal investigation began. The IRS served a summons for production of records on Mr. Simons' employer, Southwest Drywall, and sent appellants notice of the summons by certified mail. Appellants refused to pick up their mail and did not attempt to intervene in the summons procedure. Southwest Drywall complied with the summons. The appellants then filed a motion in the district court for the return of the seized records and their suppression in any further criminal proceeding. The district court upheld the legality of the summons and denied all relief.

2

Under the standard set forth in DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), the denial of the appellant's motion is appealable only if "the motion is solely for the return of property and is in no way tied to a criminal prosecution in esse against the movant." 369 U.S. at 131-32, 82 S.Ct. at 660, 7 L.Ed.2d at 621. We have interpreted DiBella broadly, holding that only if the motion is "a collateral attempt to retrieve property and not an effort to suppress evidence in related criminal proceedings is it appealable." United States v. Glassman, 533 F.2d 262 (5th Cir. 1976). In Glassman we held that denial of a motion for the return of property and suppression of evidence was not appealable even in the absence of the existence of any formal criminal charges at the time of appeal. 533 F.2d at 263. See also United States v. Peachtree, 456 F.2d 442, 447-48 (5th Cir. 1972).

3

The "property" which the appellants seek returned in this case consists of W-2 and W-4(e) forms, expense checks and vouchers, payroll checks, and other employment records, all kept in the files of Mr. Simons' employer. It is obvious that the appellants' motion is directed at the suppression of this evidence in any criminal proceeding arising from the IRS criminal investigation and is not a collateral action for the return of property. The district court's order is nonappealable, and we therefore dismiss for want of jurisdiction.

4

APPEAL DISMISSED.

*

Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I