635 F.3d 101 (3rd Cir. 2011), 10-3527, In re Grand Jury

Docket Nº:10-3527.
Citation:635 F.3d 101
Opinion Judge:SMITH, Circuit Judge.
Party Name:In re GRAND JURY.
Judge Panel:Before: McKEE, Chief Judge, and SMITH, Circuit Judge and STEARNS, District Judge.[*]
Case Date:February 16, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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635 F.3d 101 (3rd Cir. 2011)


No. 10-3527.

United States Court of Appeals, Third Circuit.

February 16, 2011

Argued Jan. 26, 2011.

Before: McKEE, Chief Judge, and SMITH, Circuit Judge and STEARNS, District Judge.[*]

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SMITH, Circuit Judge.

The appellant is a target of a grand jury investigation. In connection with the investigation, federal agents executed a warrant to search the appellant's property and seized numerous documents. To accommodate the appellant, the agents agreed to furnish him with copies of all seized documents. Unsatisfied, the appellant moved for return of the documents, as well as any copies, on the ground that the search and seizure violated the Fourth Amendment. The District Court denied the motion, and this appeal followed. As explained below, we lack jurisdiction to review the denial and will dismiss the appeal.


During an investigation by a grand jury sitting in Scranton, Pennsylvania, federal agents obtained a warrant to search the home and offices of the appellant. The warrant affidavit is sealed, but the government has indicated that the appellant is being investigated for federal-program theft, extortion, fraud, and money laundering. The warrant was executed on June 18, 2010; agents seized numerous documents and made copies of the appellant's hard drives (while leaving the computers undisturbed). To mitigate any inconvenience caused by the seizure, the agents agreed to provide the appellant with copies of the seized documents.

Unappeased, the appellant filed a motion under Federal Rule of Criminal Procedure 41(g) in the Middle District of Pennsylvania.1 The motion challenged the validity of the search and seizure, and requested (1) that the warrant affidavit be unsealed, (2) that all seized evidence be returned to the appellant, (3) that any copies of the evidence be returned, and (4) that the government be ordered to cease inspection of the evidence pending a ruling on the motion. Importantly, the motion did not assert that the government's retention of the evidence was causing the appellant to experience hardship. It claimed, instead, that the search and seizure ran afoul of the Fourth Amendment, and that the government thus had no business using the seized evidence against the appellant in criminal proceedings.

The government filed two responses to the motion: one was a regular response and the other a supplemental ex parte response. The regular response argued that the appellant's motion was not a motion for the equitable return of property (which is contemplated by Rule 41(g)), but was, instead, a premature motion to suppress evidence. The response also defended the search and seizure against constitutional attack, stressing that they were conducted pursuant to a duly issued warrant.

The supplemental ex parte response, to which the sealed warrant affidavit was appended, explained that the government had a strong interest in maintaining the warrant affidavit under seal. According to the government, unsealing the affidavit would cause the identities of confidential informants to be revealed, expose individuals and businesses to public obloquy though charges against them may never be brought, cause the release of confidential

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grand jury and tax information, and " result in disclosing to [the appellant], prior to the initiation of charges, the precise areas of inquiry into which the investigation was looking, thereby facilitating [the appellant's] and other subjects' obstruction of the investigation." Gov't Br. at 16.

By order dated August 17, 2010, the District Court denied the appellant's motion. It concluded that the appellant was not entitled to return of the seized property or unsealing of the warrant affidavit. This appeal followed.


The appellant asserts that 28 U.S. C. § 1291 gives this Court jurisdiction to review the order denying the Rule 41(g) motion. Section 1291 vests the courts of appeals with jurisdiction over " appeals from all final decisions of the district courts of the United States." Both sides agree that the question whether the District Court's order is final and appealable is governed by the Supreme Court's decision in Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Under Di Bella, denial of a pre-indictment Rule 41(g) motion is not final and appealable if the motion was in effect for the suppression of evidence. See id. at 131-32, 82 S.Ct. 654. " Such a ruling is considered to be merely a step in the criminal process, and any rights involved are adequately protected in subsequent trial proceedings." United States v. Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1300 (3d Cir.1978) (citing Di Bella, 369 U.S. at 121, 82 S.Ct. 654). Di Bella carved out an exception for orders denying motions that are truly independent of anticipated criminal proceedings. Notably, however, " [o]nly if the motion [1] is solely for return of property and [2] is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent." 369 U.S. at 131-32, 82 S.Ct. 654. Failing to observe these limitations, the Court explained, would undermine the policies against piecemeal appellate review and disrupting ongoing criminal prosecutions that underlie § 1291's final-judgment requirement. See id. at 124, 126-29, 82 S.Ct. 654.

We have previously had occasion to apply Di Bella in circumstances similar to those presented here. In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 806 (3d Cir.1979), for example, a corporation produced documents in response to a subpoena duces tecum issued by a grand jury. After handing over the documents, the corporation moved for their return, alleging that they had been procured through fraud. See id. at 806-07 & n. 1. The District Court denied the motion, and the corporation appealed. We concluded that the District Court's order was not appealable:

In the grand jury context, nongovernment appeals of technically nonfinal decisions have been closely limited to orders denying motions for the return of property. But as we [have] observed ..., the question whether a motion is for the return of property or whether it is for the suppression of evidence, and thus nonappealable, must be resolved by examining the essential character of the proceedings in the district court. [Here, i]t is not disputed that although the grand jury proceedings were at a standstill for a time, they have been resumed, and the conduct of [the corporation] is still the subject of inquiry. There is obviously the possibility of a criminal prosecution against the corporation and it cannot be said that the motion is in no way tied to a...

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