592 F.2d 251 - Simons v. United States — 592 F.2d 251

How this case has been cited

Cited by 15 later decisions — most recently January 2000

13 federal appellate ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Summary Calendar.*

¶2Norman R. Simons, Catherine Simons, pro se.

¶3Joe Alfred Izen Jr., Houston, Tex., for plaintiffs-appellants.

¶4Jose 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.

¶5Before CLARK, GEE and HILL, Circuit Judges.

¶7PER CURIAM:

¶8Appellants 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.

¶9Under the standard set forth in Di-Bella 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 *252L.Ed.2d at 621. We have interpreted Di-Bella 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).

¶10The “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.

¶11APPEAL DISMISSED.