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U.S. v. PARLAVECCHIO

March 1, 2002

UNITED STATES OF AMERICA,
V.
MARIA PARLAVECCHIO.



The opinion of the court was delivered by: Muir, District Judge.

ORDER

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 follows:

(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 property...

In the last ten years motions for return of property have been frequently litigated in district courts and Courts of Appeals.

The first issue that we must consider is whether we have jurisdiction to entertain Mrs. Parlavecchio's motion. In its brief in opposition to Mrs. Parlavecchio's motion the government questioned whether we have jurisdiction to entertain the motion because the seminal fluids were "seized" in New York City. Rule 41(e) appears to state that a motion for return of property should be filed "in the district court for the district in which the property was seized[.]" The Court of Appeals for this circuit has not addressed the issue. The Courts of Appeals that have addressed this issue have arrived at different conclusions.

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, ...


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