DeMassa v. Nunez , 747 F.2d 1283 ( 1984 )

TANG, Circuit Judge:

Attorney Philip DeMassa and other plaintiffs appeal the district court’s denial of injunctive relief claiming that the district court erred by failing to order the return of all documents and property seized in a raid on DeMassa’s office pursuant to an investigation of DeMassa’s alleged ties to a drug smuggling operation. The government cross-appeals, arguing that the district court erroneously invalidated parts of the search warrant as overbroad. We dismiss both appeals for lack of appellate jurisdiction.

I.

On April 18, 1983, Drug Enforcement Administration agents obtained search warrants to enter and search the home and law office of attorney Philip DeMassa. The magistrate issuing the warrant appointed an attorney, Paul Duvall, to act as special master whose duty was to supervise the search. The affidavit supporting the warrant drew largely on information received from a government informant whom the affiant claimed made several references to DeMassa’s alleged involvement in a drug smuggling operation.

The search started the following morning when several agents, special master Duvall and an Assistant U.S. Attorney arrived at DeMassa’s office around 8:30 a.m. Forty-five minutes later, DeMassa arrived and was shown a copy of the search warrants. He did not see a copy of the affidavit at this time, but was shown paragraph 97 of the affidavit later in the morning. Paragraph 97 contained descriptions of items subject to seizure and was incorporated into the first sentence of the warrant.

The search proceeded in the following manner. Taking one file cabinet at a time, an agent would pull a file and turn it over to the special master if it looked as if the file contained documents subject to seizure. After further consultation with the issuing magistrate, the special master initiated a new procedure under which he alone would review the files to protect privileged communications. Thus, an agent would give Duvall the name of a file and Duvall would pull the file and review it. He would then decide whether to allow the document to be seized or return it to DeMassa. In some cases, Duvall would seal the file for additional review by the magistrate. A search of DeMassa’s home was conducted in the same way on April 19.

By April 21, the operation had proceeded through six cartons of documents. DeMassa and the search team then stipulated to continuing the search elsewhere to end the disruption in DeMassa’s office. In a written stipulation signed by the special master, the files were taken from the office and moved to the U.S. Courthouse for storage in a locked room. The government was allowed to keep six cartons of documents already searched.

The special master’s review continued at the courthouse with DeMassa present and registering objections. Three days later, DeMassa filed a complaint for damages and for a temporary restraining order. The district court ordered all of the materials sealed and stayed the search pending further hearing.

DeMassa’s complaint for damages and for the return of his property was joined by some of his clients and several individuals who were not clients, but co-defendants with other DeMassa clients involved in the “Coronado Company”, a drug smuggling operation. The complaint alleged several constitutional violations, including charges that the search was unreasonable, and that the seizure of files violated the fifth and sixth amendment rights of clients. The district court held that injunctive relief for the alleged fifth and sixth amendment violations would be inappropriate because remedies for such violations could be sought through suppression motions raised in any subsequent criminal prosecutions. With respect to the fourth amendment claims, the court ruled that the warrant was partially overbroad and that equitable relief was proper if limited to the scope necessary to prevent further constitutional injury. The court did not order the return of all documents. Instead, it retained custody of the documents under seal except for six boxes of documents which the government had already reviewed during the search operation. The court ordered an inspection of the remaining documents by an appointed magistrate whose duty is to' recommend to the district court which documents fall within those portions of the warrant which are not overbroad.

The plaintiffs appeal the district court’s denial of their motion for the return of all documents. The government has filed a “protective” cross-appeal, arguing that the district court incorrectly invalidated parts of the search warrant.

II.

The government contends that the district court’s denial of injunctive relief is not appealable. Because interlocutory appeals of suppression orders are not generally appealable, DiBella v. United States, 369 U.S. 121, 122, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962); People of Territory of Guam, v. Mafnas, 721 F.2d 683, 685 (9th Cir.1983), DeMassa’s motion for the return of property, which the government argues is the functional equivalent of a motion to suppress, constitutes an interlocutory order with the same appealability restrictions as an order denying a suppression motion.

DeMassa argues that a motion for return of property pursuant to Fed.R.Crim.P. 41(e) is not a suppression motion and is therefore independently appealable under 28 U.S.C. § 1292(a)(1).

Rule 41(e) is the functional equivalent of a motion to suppress because the rule provides that any property returned “shall not be admissible in evidence at any hearing or trial.” The courts have treated motions pursuant to Rule 41(e) as motions to suppress. Angel-Torres v. United States, 712 F.2d 717, 719 (1st Cir.1983); Standard Drywall, Inc. v. United States, 668 F.2d 156, 158 (2d Cir.), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982). The district court below also recognized DeMassa’s claim as a functional suppression motion.¹

Because a motion for return of property pursuant to Rule 41(e), if granted, promises the same effect as a suppression order, courts will apply the same general rule prohibiting interlocutory review of such orders unless the motion for return of .property “is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant ...” DiBella v. United States, 369 U.S. 121, 131-32, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962). In DiBella, a defendant moved to suppress evidence seized from his apartment and sought its return pursuant to Rule 41(e) after arraignment and release under bail. The Supreme Court ruled that the district court’s denial of relief was not appealable. “This insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases.” Id. at 124, 82 S.Ct. at 656-57. However, when the motion is “fairly severable from the context of a larger litigious process,” an order denying the requested relief is immediately appeala-ble. Id. at 127, 82 S.Ct. at 658.

Thus, when a motion for return of property is independent of a criminal prosecution, a trial court’s denial of the motion is subject to immediate appeal because the absence of a related prosecution would render review of the lower court’s order impossible. “Denial of review in such circumstances would mean that the government might indefinitely retain the property without any opportunity for the movant to assert on appeal his right to possession.” United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). In determining whether a motion for return of property is truly independent of an underlying criminal action, courts look to the twin tests of DiBella, i.e., whether the motion is solely for return of property and whether the motion is in no way tied to a criminal prosecution against the movant.

Without deciding whether DeMassa’s motion is solely for the return of property, we dismiss the appeal for lack of jurisdiction because there is a criminal proceeding in being against DeMassa.

In DiBella the Supreme Court suggested that a prosecution is in esse “[w]hen at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment ...” 369 U.S. at 131, 82 S.Ct. at 660. Several circuits have given this test a strict reading and have required that any criminal action against the movant be beyond the investigatory stage and into an accusatory stage by 'the filing of charges. In re Grand Jury Proceedings, 716 F.2d 493, 496 (8th Cir.1983); Sovereign News Co. v. United States, 690 F.2d 569 at 571 (6th Cir.1982); Lucky Messenger Service v. United States, 587 F.2d 15, 16 (7th Cir.1978). Other circuits have been less restrictive and have deemed a criminal action to be in esse before arrest or indictment. Indeed, these cases hold that denial of a motion for return of property is not appealable when a grand jury investigation is pending against the movant. United States v. Furina, 707 F.2d 82, 84 (3d Cir.1983); Standard Drywall v. United States, 668 F.2d at 158 (2d Cir.1982); Imperial Distributors v. United States, 617 F.2d 892, 896 (1st Cir.1980). This circuit has joined those courts adopting a liberal definition of when a proceeding is in esse and has also concluded that an order denying the return of seized property is not appealable when a grand jury proceeding against the movant is underway. Church of Scientology of California v. United States, 591 F.2d 533 (9th Cir.1979) cert. denied, 444 U.S. 1043, 100 S.Ct. 729, 62 L.Ed.2d 729 (1980).

In Church of Scientology, thousands of documents were seized from two Church offices in Los Angeles. Although the Church had not been indicted, eleven of its officers or employees had been indicted by a District of Columbia grand jury. 591 F.2d at 534. Grand Jury proceedings were also pending in New York. The Church attempted to appeal the district court’s denial of a motion to return property, but this court dismissed, concluding that “an ongoing criminal proceeding is not to be interrupted by an appeal from an order denying suppression of evidence that may be used in that proceeding.” Id. at 536.²

Here, at the time of the district court’s ruling on DeMassa’s motion for return of property, a grand jury investigation of De-Massa was underway, inquiring into his possible links to a drug smuggling conspiracy. The grand jury investigation is apparently continuing, and has so far returned indictments against DeMassa for harboring one of the alleged leaders of the drug smuggling operation as a federal fugitive and for mail fraud. If the evidence seized from DeMassa’s office is used to prosecute any indictments returned against him, he can move to suppress its use, and, if unsuccessful, appeal the failure to suppress after conviction. Given the ongoing nature of the grand jury investigation into DeMassa’s activities, there is a proceeding in esse against DeMassa which counsels against the assumption of appellate jurisdiction at this time.

Similarly, we must dismiss the government’s cross-appeal for lack of jurisdiction. The government itself argues that this court lacks jurisdiction to hear the cross-appeal and labels it a “protective” cross-appeal which was filed only to prevent those parts of the district court’s order which are adverse to the government from becoming the law of the case in the event we determined that the district court’s order was now appealable. Because interlocutory appeals of injunctive orders under 28 U.S.C. § 1292(a) are not mandatory, Scarrella v. Midwest Federal Savings and Loan, 536 F.2d 1207, 1209 (8th Cir.) (per curiam), cert. denied, 429 U.S. 885, 97 S.Ct. 237, 50 L.Ed.2d 166 (1976); 9 Moore’s Federal Practice § 110.18 (1975), the government may raise its appeal after entry of a final judgment.

Moreover, the teaching of the Supreme Court’s opinion in DiBella persuades us to dismiss the cross-appeal. There, the Court noted that a trial court’s ruling that either grants or denies a motion to suppress evidence to be used in an underlying criminal proceeding is “ ‘but a step in the criminal ease preliminary to the trial thereof.’ ” 369 U.S. at 131, 82 S.Ct. at 660 (quoting Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. 118, 120, 73 L.Ed. 275 (1929)). To allow the government to appeal in this case would conflict with the “general policy against piecemeal appeals [which] takes on added weight in criminal cases, where the defendant is entitled to a speedy resolution of the charges against him.” Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (citing DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962)). See also United States v. Hines, 419 F.2d 173, 175 (10th Cir.1969). The policy against fragmented appeals is especially significant here as the district court ruling at issue did not suppress or return any of the seized evidence. It made a finding of liability under the fourth amendment, but did not actually foreclose the use of particular files in subsequent proceedings. Hence, the order from which the cross-appeal js taken has delayed but not necessarily precluded the use of evidence in criminal proceedings. Under such circumstances, appeal is particularly inappropriate.

The plaintiffs’ appeal and the government’s cross-appeal are

DISMISSED.

1 . "A movant can omit any reference to 'suppression' in his motion for return of property, as this appellant has done, and claim to satisfy the DiBella test of appealability, secure in the knowledge that the granting of his motion for return of property automatically results in suppression.” Standard Drywall, Inc. v. United States, 668 F.2d at 158.

2 . In Church of Scientology, this court recognized that DiBella was not precisely on point because unlike DiBella, no indictment had been returned. The court found DiBella to be applicable because “[l]ater cases ... carry the DiBella principle a little farther." 591 F.2d at 535. Although this court in Goodman v. United States, 369 F.2d 166 (9th Cir.1966) assumed jurisdiction over an appeal from an order denying the return of property seized by the Internal Revenue Service, the Scientology court found Goodman to be easily distinguishable. “Our decision in Goodman v. United States ... is different. There, as we said 'there is, and has been, no criminal case pending in any stage.’ (p. 168). Not so in the case at bar." 591 F.2d at 536.