The opinion of the court was delivered by: Muir, District Judge.
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On December 13, 2000, a federal grand jury returned a 10-count
superseding indictment charging John Alite, Antonino Parlavecchio and
Maria Parlavecchio with, inter alia, conspiracy in violation of
18 U.S.C. § 371. On August 29, 2001, John Alite and Maria
Parlavecchio pled guilty to count 6 of the superseding indictment and
Antonino Parlavecchio, the husband of Maria Parlavecchio, pled guilty to
Count 7 of the superseding indictment. Count 6 charged John Alite and
Mrs. Parlavecchio with providing a prohibited object to an inmate, namely
Mr. Parlavecchio at the Allenwood Federal Prison in violation of
18 U.S.C. § 1791 (a)(1). Count 7 charged Mr. Parlavecchio with
possession of a prohibited
object in violation of 18 U.S.C. § 1791 (a)(2).
On August 29, 2001, Mrs. Parlavecchio entered a plea of guilty to Count
6 of the superseding indictment. A presentence report was received by the
court on November 23, 2001. No objections were filed to the presentence
report. On December 3, 2001, Mrs. Parlavecchio was sentenced to a
one-year term of probation. No appeal was filed by Mrs. Parlavecchio.
On February 1, 2002, Mrs. Parlavecchio filed a motion for return of
property pursuant to Federal Rule of Criminal Procedure 41(e). The motion
became ripe for disposition on February 28, 2001, when Mrs. Parlavecchio
elected not to file a reply brief.
The presentence report and briefs filed in this case reveal that the
following facts are undisputed. In furtherance of the conspiracy alleged
in the superseding indictment Mrs. Parlavecchio provided toiletries,
foodstuffs and cryogenic sperm preservation kits to her husband through
Troy Kemmerer who was employed as a correctional officer at the prison.
It was part of the conspiracy that in exchange for receiving $5000 Mr.
Kemmerer would obtain the sperm kits from Mrs. Parlavecchio and deliver
the kits to Mr. Parlavecchio. Mr. Parlavecchio would then fill the sperm
preservation kits with his seminal fluids and the kits would be returned
to Mr. Kemmerer who would transport the kits from the prison to Mrs.
Parlavecchio. Mrs. Parlavecchio would thereafter transport the kits or
cause them to be transported to the Park Avenue Fertility Clinic in New
York City. The seminal fluids were removed from the cryogenic sperm
preservation kits and preserved at the fertility clinic. On or about
October 2, 2000, Mrs. Parlavecchio directed that the seminal fluids be
forwarded to her Obstetrician and Gynecologist, Cecilia Schmitdt-Sarosi,
M.D., whose office is also located in New York City. One of the purposes
of the conspiracy was to enable Mrs. Parlavecchio to conceive a child by
her husband through artificial insemination.
A separate indictment was returned against Mr. Kemmerer. After Mr.
Kemmerer was arrested, the investigators learned of the existence of the
stored seminal fluids. When the investigators learned of the stored
seminal fluids a request was made of Dr. Schmitdt-Sarosi to retain the
seminal fluids and not release or permit them to be used until further
notice. Dr. Schmitdt-Sarosi honored that request. Mrs. Parlavecchio in
the motion for return of property requests that the government return and
relinquish control of the seminal fluids to her.
Federal Rule of Criminal Procedure 41(e) provides in relevant part as
(e) Motion for Return of Property. A person aggrieved
by an unlawful search and seizure or by the
deprivation of property may move the district court
for the district in which the property was seized for
the return of the property on the ground that such
person is entitled to lawful possession of the
In the last ten years motions for return of property have been frequently
litigated in district courts and Courts of Appeals.
In Thompson v. Covington, 47 F.3d 974 (8th Cir. 1995) the motion for
return of property was filed in the district where the property was
seized and not where the case was tried. The district court dismissed the
action with prejudice. The Court of Appeals held that "post-conviction
filings for return of property seized in connection with a criminal case
are treated as civil equitable actions, and the district court where the
claimant was tried has subject-matter jurisdiction ancillary to its
criminal jurisdiction to hear the equitable action." Id. at 975. The
Court of Appeals vacated the district court order and directed the
"district court to dismiss the case without prejudice so that Thompson
may refile, if he wishes, in the proper district court." Id.
The Court of Appeals for the Second Circuit has held that the district
court in which a defendant was tried had ancillary jurisdiction to hear
defendant's post-trial motion for return of seized property despite the
fact that the motion was brought after the conclusion of criminal
proceedings in a different district than that in which the property was
seized. United States v. Giovanelli, 998 F.2d 116, 118-19 (2d Cir.
1993). The Court emphasized that such a motion for return of property
where the criminal action has been terminated "`is treated as a civil
equtitable proceeding even if styled as being pursuant to Fed. R.Crim.P.
41(e).'" Id. at 118 (emphasis added) (quoting Soviero v. United States,
967 F.2d 791, 792-93 (2d Cir. 1992)).
Contrary to the above cases, the Court of Appeals for the Fourth
Circuit has held that after a criminal proceeding has terminated a Rule
41(e) motion must be filed in the district where the property was
seized. United States v. Garcia, 65 F.3d 17, 20 (4th Cir. 1995). In
Garcia the Court of Appeals further held that because the property at
issue was seized in Florida only the district court in Florida had
jurisdiction. However, ...