Application of Herr, M9-150.
| Decision Date | 03 August 1979 |
| Docket Number | M9-150. |
| Parties | In the Matter of the Application of David T. HERR for an Order Directing the Return to Him of Certain Items Pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. |
| Court | U.S. District Court — Southern District of New York |
Patrick M. Wall, New York City, for movant.
Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, by Bruce L. Owens, Asst. U. S. Atty., New York City, for the United States of America.
The movant, the defendant in a criminal case pending in the United States District Court for the Central District of California, seeks an order pursuant to Fed.R.Crim.P. 41(e) requiring the return of certain items seized by FBI agents during the investigation that led to his indictment.
In June 1979, the movant was an officer of Bowne Information Systems, Inc. Bowne, a corporation providing various computerized services to subscribers. Bowne's headquarters are located in this District. On June 11, 1979, FBI agents investigating Bowne on possible wire fraud charges obtained a search warrant, searched the Bowne headquarters and seized the items at issue here. On July 5, a Grand Jury sitting in the Central District of California filed an indictment charging movant with ten counts of wire fraud in violation of 18 U.S.C. § 1343 (1976). On July 23, movant was arraigned and pleaded not guilty. Pretrial motions are due August 13, and trial is scheduled to commence August 28. The government intends to introduce some or all of the seized items into evidence at trial.
On July 31, movant made the instant motion. He seeks return of the items under Rule 41(e) on the ground that the search and seizure were unlawful. The government, rather than contest the claim of unlawfulness, urges that we should exercise our discretion to decline jurisdiction and refer the issue of lawfulness back to the trial court in the Central District of California. Our reading of the relevant rules and cases, as well as our consideration of the circumstances of this case, persuades us to adopt the government's view.
Rule 41(e) provides:
Though the rule entitles the defendant in a criminal case pending in one District to seek return in another District where the property was seized, the rule does not give him an absolute right to have his application decided in the seizure District. Indeed, the law in this District is to the contrary.
In United States v. Lester, 21 F.R.D. 30 (S.D.N.Y.1957), Judge Palmieri decided a Rule 41(e) motion where the movants were facing trial under an indictment in the District Court for the Western District of Pennsylvania. Judge Palmieri held that under Rule 41(e) the court could, in its discretion, decline jurisdiction, leaving the movant free to obtain an adjudication of the lawfulness of the seizure through a Rule 12 motion to suppress in the trial court. This holding has been consistently followed by other District Courts, see, e. g., United States v. 1617 Fourth Ave., S. W., 406 F.Supp. 527 (D.Minn.1976), as well as by Courts of Appeals, see Freedman v. United States, 421 F.2d 1293 (9th Cir. 1970), cert. denied, 404 U.S. 992, 92 S.Ct. 538, 30 L.Ed.2d 544 (1971), and it has been endorsed by the United States Supreme Court, see DiBella v. United States, 369 U.S. 121, 132-33, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Absent a showing that the Lester rule is inapplicable here, we must apply it in this case.
The reasons advanced by Judge Palmieri in support of the Lester decision are equally applicable here. First, as in that case, deferral will avoid the possibility of duplication of effort by the two courts and thus serve the interest of judicial economy. See United States v. Lester, supra, 21 F.R.D. at 31. If this court were to deny the claim of unlawfulness, for example, the trial court could still hold the evidence inadmissible on other grounds, thus resulting in two adjudications of admissibility instead of one. Second, deferral will avoid the possibility that this court, less familiar with the entire case than the court where trial is to be had, will make a ruling that is ill-considered or premature and thus possibly prejudicial to one side or the other. See id.
Amendments to the rule subsequent to the Lester decision also support our decision today. Prior to 1972, Rule 41(e) allowed a defendant to bring a suppression motion, similar to the return motion here, in either the seizure court or the trial court. The 1972 amendments, by rewriting Rules 41(e) and 41(f), made clear that a suppression motion was to be brought only in the trial court, not the seizure court. As the Advisory Committee Notes to those amendments make clear, the purpose of the change was to further the objective of judicial economy embodied in Rule 12 by having all pretrial motions disposed of in a single appearance before the trial court. See Amendments to Federal Rules of Criminal Procedure, 56 F.R.D. 143, 170-71 (1972). That objective is clearly served by our decision here.
Admittedly, the amendments still leave open the opportunity to bring a return motion in the seizure court. Such a motion, unlike a suppression motion, may be made by any "aggrieved person," see Rule 41(e), not just the defendant. When the movant is not the defendant, it makes sense to allow the seizure court to hear the motion since this will avoid the inconvenience of relegating the movant to a forum that may be far away from the place of seizure and may have no connection to the movant other than being the repository of evidence taken from him but sought to be used against...
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Ex Parte Decious, 85 C 1654.
...rule does not give aggrieved parties the absolute right to have their motions decided in the district of seizure. See Application of Herr, 473 F.Supp. 1304 (S.D.N.Y.1979); United States v. Lester, 21 F.R.D. 30 (S.D. N.Y.1957). When the court is not the trial court, it is more appropriate to......