DocketNumber： 88-3932
Citation Numbers： 899 F.2d 550
Judges： Kennedy, Guy, Norris
Filed Date： 7/31/1992
Status： Precedential
Modified Date： 11/4/2024
dissenting.
I am unable to agree that service of notice of garnishment on the clerk of the District Court established a perfected interest in Wilson’s property which was in the possession of the United States Marshal following seizure under a search warrant.
The search warrant gave agents of the Federal Bureau of Investigation, a branch of the executive department, authority to seize the property. Fed.R.Crim.P. 41 requires that the officer seizing the property give a receipt to the person from whom it is seized (or leave a receipt at the premises searched). An inventory of the property seized must be filed with the District Court. But it is clear that it is the executive branch which is directed to seize the property. The executive branch retains the property. The property is not turned over to the court. The court has merely authorized the seizure. The executive branch
The court’s authority over seized property is not unlike its authority when property is seized pursuant to a writ of attachment or execution. A court order or writ authorizes the seizure of the property. If it is improperly seized the court can order its return. Once again, this can be done only after hearing and an adjudication. The court retains that power whether the property is still in the hands of the seizing official or the party who secured the writ. The fact that a court has authority to affect the ultimate disposition of the property does not mean that the property is in its possession and control.
Nor can I agree that the marshal is the agent of the District Court when maintaining custody of seized property. As pointed out by the Third Circuit in Chabal v. Reagan, 841 F.2d 1216 (3d Cir.1988):
United States Marshals are officers of the Department of Justice. 28 C.F.R. § 0.5(a). They are appointed by the President, with the advice and consent of the Senate, and are placed by statute under the supervision and direction of the Attorney General. 28 U.S.C. §§ 561(a), 569(c). The Attorney General oversees the activities of the marshals through the United States Marshals Service, a bureau of the Department of Justice. 28 C.F.R. § 0.1.
As early as 1890, the Supreme Court ruled that “marshals of the United States ... belong emphatically to the executive department of the government.” In re Neagle, 135 U.S. 1, 63, 10 S.Ct. 658 [668], 34 L.Ed. 55 (1890). The Court has since reiterated that “Marshals are within the Executive Branch of the Federal Government, ... subject to the supervision and direction of the Attorney General ... [and] funded through Department of Justice appropriations.” Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 36 n. 1, 106 S.Ct. 355, 358 n. 1, 88 L.Ed.2d 189 (1985).
Id. at 1219-20.
Marshals control the custody and disposition of assets seized by the Department of Justice, not because the District Court orders it, but because of regulations adopted by the executive branch. 28 C.F.R. § 0.111(i). The discharge of these duties is subject to the direction and supervision of the Attorney General. The Chabal court recognized that the marshals provide a variety of services to the judiciary but concluded that merely because the court benefits from these services does not make those activities quasi-judicial. As the Court pointed out in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985), federal courts may direct the actions of United States Marshals only when pursuant to express statutory authority.
Although the Marshals Service does on occasion hold property for a United States District Court (goods deposited as security for a bond for example), that property is held separate from property it holds for executive agencies.
Considerable reliance is placed on the fact that the property here was seized pursuant to a search warrant. Yet the FBI’s handling of the property is the same whether seized pursuant to a warrant or seized under exigent circumstances. The federal agency turns the property over to the marshal under the Department of Justice regulation. The power of the court to require the return of the property if wrongfully seized is the same. The power to order its return is expressly provided in Rule 41. In both instances, possession and control of the property remains in the executive branch which can return the property at any time. It need not consult the court which surely would be necessary if the
United States v. Wright, 610 F.2d 930 (D.C.Cir.1979), relied upon by the majority, arose under the District of Columbia Code. The District of Columbia search warrant in that case is distinguishable from the federal warrant in that it required the officers to bring the property before the court. Id. at 932. Moreover, the issue decided in Wright was whether the court had jurisdiction to hear a motion to return the property after the criminal case was closed. The property had been transferred from the property clerk of the Metropolitan Police District to the General Revenue fund of the District of Columbia. The court held that the criminal courts which had authorized the seizure of the property retained jurisdiction to order its return even post-conviction or after dismissal of the charges. The District of Columbia Code provided that the court could order the return of property after an acquittal but was silent with respect to the court’s jurisdiction after conviction or dismissal. The government argued that since the District of Columbia was not a party to the criminal action (the United States was the named party), the court lacked jurisdiction to enter an order in the criminal proceeding directing the District of Columbia to return the property. It is in this connection that the court made the statement relied upon by the majority. The court noted that the search warrant required the executing officers to “bring the property before me [the issuing magistrate].” Id. at 932 n. 1. In view of that requirement, the court decided that if the District of Columbia or the property clerk thereafter came into possession of the property they held it as agents of the United States. The magistrate once having possession and control of the property which was brought before him could be said to have been required to maintain that possession and control, and the property clerk was seen as the court’s agent to maintain that control. In the case of a federal search warrant the property is not brought before the court but remains in the possession and control of the executive branch. The clerk of the court has no say in where or how the property should be stored. The executive which seized the property retains possession and control until it either voluntarily returns the property to the owner or is ordered after hearing and adjudication to return it, to turn it or its proceeds over to the treasury, or in the case of contraband perhaps, destroy it.
The majority’s decision places a heavy burden on the District Court clerk. Search warrant returns may be filed under miscellaneous numbers which reflect only addresses. The inventory which is the only document filed with the clerk may or may not disclose the ownership of the property. The holding that the clerk has possession and control of the seized property will require the clerk to catalogue seized property and preserve it, duplicating the efforts of the Marshals Service and engendering possible conflicts as to the manner in which the property should be safeguarded.
Were I to agree with the majority that the District Court had possession and control of the property, I would remand the action for determination of whether the property was in custodia legis and therefore not subject to garnishment.