APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 74-717
Seitz, Chief Judge, Hunter and Garth, Circuit Judges.
Milton F. Meissner appeals from an order of the United States District Court for the Western District of Pennsylvania staying an action for levy and seizure of a safe deposit box, pending the outcome of criminal proceedings against Meissner in the Southern District of New York. Alternatively, Meissner asks us to regard his appeal as a petition for a writ of mandamus ordering the district court to vacate the stay. The Mellon Bank, which leased the safe deposit box to Meissner, is a mere stakeholder and is not involved in this appeal. Treating Meissner's appeal as a petition for a writ of mandamus, we must dismiss it.
Meissner allegedly was linked to various securities and tax frauds involving Robert Vesco and Investors Overseas Services. On April 9, the Internal Revenue Service entered a jeopardy assessment against Meissner and his wife,*fn1 who now reside in Costa Rica. On April 10, 1974, the Government served notice of levy and seizure on the Mellon Bank, which had leased a safe deposit box to Meissner and his wife.*fn2 The Bank refused to permit the Government to break into the box, which remains sealed.
On July 26, 1974, the Government petitioned the court below for an order directing the opening of the box.*fn3 Meissner was granted leave to intervene in that proceeding and opposed the attempted seizure. In September of 1974, he initiated a suit in the Tax Court to contest the jeopardy assessment.
Meissner opposed the seizure of the contents of the safe deposit box on several constitutional and other legal grounds. Primary among them was his contention that the Government had no genuine tax purpose for the seizure proceeding, that it wanted to examine the contents of the box merely to gather evidence for the criminal investigation of Meissner then in progress. He sought discovery of certain Government documents that would, he claimed, support this charge of bad faith.
The district court held that it lacked jurisdiction to consider Meissner's claims and denied his discovery motion. This court reversed, United States v. Mellon Bank, N.A., 521 F.2d 708 (3d Cir. 1975) (Mellon Bank I). In the meantime, Meissner had obtained a stay of his Tax Court proceeding, alleging that it might jeopardize his fifth amendment rights with respect to criminal investigations then occurring.
On remand, the district court granted Meissner access to the documents he had requested. He maintains that several of these are sufficient to demonstrate the Government's bad faith in bringing the seizure action. Nevertheless, on January 16, 1976, two days after he was indicted for tax evasion in the Southern District of New York, Meissner sought further discovery in the seizure proceeding. This time he requested the following Government materials:
All documents relating to:
a. Any investigation of Dr. and/or Mrs. Meissner by any section or division of the Internal Revenue Service, including, but not limited to, the Audit Section, Collection Section, and Intelligence section;
b. Any investigation by any agency or department of Petitioner, U.S. Government, including, but not limited to the Internal Revenue Service, Securities and Exchange Commission and the Department of Justice in connection with any violations of law by Investors Overseas Services, and other related businesses and/or companies, Robert Vesco and/or any other individuals connected with IOS and/or related businesses and/or companies which relate to Dr. or Mrs. Meissner.
The court did not act on the motion. Instead, in an order of February 17, 1976, it granted the government's motion to continue the proceedings until final disposition of the criminal matter in the Southern District of New York. The court grounded this order on the finding that "substantial matters of the same nature ...