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.