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United States v. Residence of Nicholas Furina

May 24, 1983

UNITED STATES OF AMERICA
v.
THE RESIDENCE OF NICHOLAS FURINA, ET AL. 126 W. 25TH ST., BAYONNE, N.J. CONSOLIDATED PIER DELIVERIES, INC., INTRA-BASE TRANSPORT, INC., NICHOLAS FURINA AND BOULEVARD WEST RESTAURANT, APPELLANTS IN 82-5584 THE RESIDENCE OF ANTHONY GALLAGHER 77 WEST 36TH ST., BAYONNE, N.J., APPELLANT IN 82-5614



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Author: Weis

Before: WEIS, BECKER and VAN DUSEN, Circuit Judges

Opinion OF THE COURT

WEIS, Circuit Judge.

Business records and other documents belonging to appellants, who have not been arrested or indicted, were seized by federal agents for presentation to a grand jury. Appellants moved under Fed. R. Crim. P. 41(e) for return of the material on the grounds that the search warrants were invalid and in addition asked for disclosure of the "master affidavit" supporting the warrants.*fn1 Although it denied the motions, the district court ordered the government to supply copies of all seized documents and papers upon request. Appellants then filed an appeal in this court, as well as a petition for mandamus. We denied mandamus, but directed briefing and argument on the appeal. We now conclude that the district court's decision is not final and accordingly we will dismiss the appeal.

In May 1982, a federal magistrate in Newark, New Jersey issued approximately sixty search warrants based upon a lengthy master affidavit submitted by an F.B.I. Special Agent in connection with a grand jury investigation. Each warrant recites that the master affidavit is "attached and incorporated." Each warrant also was supported by a separate affidavit identifying the person or place to be searched and referring to the master affidavit for "the facts tending to establish the foregoing grounds for issuance of a search warrant." At the government's request, the magistrate sealed the master affidavit.

Shortly after the warrants were executed, appellants filed their motions contending that the federal agents conducted a general search and seizure of property without limitation. Appellants alleged that the warrants violated the particularity requirement of the fourth amendment, and that the master affidavit contained material falsehoods. They also argued that the service of the warrants without a copy of the incorporated affidavit violated Fed. R. Crim. P. 41(d).*fn2

After a hearing and in camera review of the master affidavit, the district judge denied the motions, lest he disrupt what appeared to be a "viable ongoing investigation" and expose some persons "needlessly and unnecessarily to public obloquy." When balanced against the rights of appellants, these considerations convinced the judge not to return the seized property or unseal the affidavit at that time.*fn3

The district judge did direct the government to supply appellants with inventories of the seized items, subject to omissions approved by the court on a showing of good cause. Appellants were also to be furnished upon request with copies of all documents seized, and the originals were to be returned by September 27, 1982, on the condition that appellants preserve them until further order. The return of the originals was also subject to exceptions approved by the court.

As for the affidavit, the district judge stated that he did not intend to unseal it in the "foreseeable future" so that the government's investigation would have "an opportunity to come to fruition." He added, however, that "[a]t some point . . . I intend to draw a line and say to the government, you're going to have to indict or acquit."

Appellants renew the contention here that the warrants are void on their face without the supporting master affidavit, and challenge the district court's refusal to unseal the affidavit. The government contends that this court lacks jurisdiction over the appeal. We turn to that issue first.

The appellants' motions in the district court were brought under Fed. R. Crim. P. 41(e), which permits "[a] person aggrieved by an unlawful search and seizure" to secure return of his property, with the result that "it shall not be admissible in evidence at any hearing or trial." Thus, we are not presented with an equitable action solely for return of property lawfully taken by the government. See e.g., United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297 (3d Cir. 1978). In their brief in the district court, appellants emphasized that they were not contesting the duration of the government's possession but the validity of the searches. "The motions at bar . . . are true Rule 41(e) motions. [Appellants] assert that these seizures are unlawful."*fn4

Appellants argue that denial of a Rule 41(e) motion is appealable as a final decision under 28 U.S.C. ยง 1291 so long as there are no related criminal proceedings against the movant. They rely on DiBella v. United States, 369 U.S. 121, 7 L. Ed. 2d 614, 82 S. Ct. 654 (1962), where the Supreme Court cautioned against disrupting the criminal process by piecemeal review. Although the Court held that denial of a pre-indictment Rule 41(e) motion was not appealable, it recognized an exception for appeals from independent proceedings. But "[o]nly if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent." Id. at 131-32.

Appellants have made it very clear that they seek more than return of property. Suppression of evidence is the primary aim of their motions, and that is enough under DiBella to require that on this record the appeal be dismissed. See, e.g., Meister v. United States, 397 F.2d 268, 269 ...


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