Elizabeth G. Austin v. United States of America, James E. Holshouser, United States Attorney for the Middle District of North Carolina

It appearing to this Court that the Supreme Court of the United States, in Di Bella v. United States and United States v. Koenig, on March 19, 1962, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614, held interlocutory and unappealable an order of a District Court entered in a proceeding commenced prior to indictment for the purpose of suppression of evidence ; and

It further appearing to this Court, by reason of the subsequent decisions of the United States Supreme Court above mentioned, that it was without appellate jurisdiction to review the order of the District Court declining to enjoin presentation of evidence to a grand jury;

Now, therefore, it is here ordered that the mandate of this Court issued on December 22, 1961 be, and the same hereby is, recalled, the judgment entered on November 21, 1961 is set aside, and the appeal is dismissed because the order of the District Court is interlocutory in nature and not appealable in advance of final judgment. This order is not intended to indicate that the District Court may not, in its discretion, hear the application for injunction prior to indictment, nor do we hereby intimate any opinion upon the merits of said application.