Imperial Distributors, Inc. v. U.S., 79-1361

• Citation: 617 F.2d 892
• Decision Date: 21 March 1980
• Docket Number: No. 79-1361,79-1361
• Parties: IMPERIAL DISTRIBUTORS, INC., et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 892

617 F.2d 892

IMPERIAL DISTRIBUTORS, INC., et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.

No. 79-1361.

United States Court of Appeals, First Circuit.

Argued Nov. 9, 1979.

Decided March 21, 1980.

Herald Price Fahringer, Buffalo, N. Y., with whom Paul J. Cambria, Jr., Barbara Davies Eberl, Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., William E. Seekford, Towson, Md., and Nelson Baker, Boston, Mass., were on brief, for appellants.

Charles E. Chase, Asst. U. S. Atty., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellees.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, ^* Senior District Judge.

BOWNES, Circuit Judge.

Petitioners-appellants ¹ challenge the denial of their preindictment motion for the return and/or suppression, pursuant to Fed.R.Crim.P. 41(e), of business records, films, and magazines seized under authority of a warrant by federal agents from a truck owned by petitioner Guarino on February 28, 1978. The motion is predicated upon petitioners' contention that the underlying affidavit failed to establish a nexus between the materials sought and the van seized; that much of the supporting information was stale; that the magistrate, using a bifurcated approach, improperly found that there was probable cause; that the warrant contained numerous facial defects; and that there was no preseizure judicial determination of obscenity.

The procedural travel of this case began shortly after the seizure with the filing of a motion for return of property under Rule 41(e) in the United States District Court for the District of Rhode Island. At the conclusion of a two-day trial, Judge Pettine denied the motion because it was within the purview of the Massachusetts District Court, and stayed the action "pending the decision of the Massachusetts District Court." We denied appellants' petition for a writ of mandamus to order Judge Pettine to dissolve his abstention order and to enter a judgment on the merits (No. 78-1559, January 4, 1979); and the Supreme Court of the United States denied a petition for writ of certiorari, 441 U.S. 927, 99 S.Ct. 2042, 60 L.Ed.2d 402 (1979). Petitioners next filed a motion for the return of their property with the United States District Court for the District of Massachusetts. In its opinion reported at 473 F.Supp. 294 (D.Mass.1979), the district court ruled that the three magazines named in the warrant were obscene; that the bifurcated search and seizure was a "reasonable response to the problem" of establishing probable cause that wholesalers and distributors were engaging in the illegal interstate shipping of obscene materials; denied the motion for return of property seized within the District of Rhode Island on jurisdictional grounds; and denied the motion concerning property seized in Boston "because the seizure violated no constitutional rights of the plaintiffs." Id. at 298. Appeal to this court ensued.

Appellee contends that the order appealed from is interlocutory and not a final order subject to appellate review under 28 U.S.C. § 1291. ² Petitioners argue that it is a final order and further assert that appellee should be estopped from raising its jurisdictional objections because it did not move "to dismiss the appeal upon service of the notice"; because "the United States Attorney engaged in negotiations with defense counsel regarding the contents of the appendix"; and because appellants "expended great effort, time and expense in perfecting the appeal."

The question of appellate jurisdiction cannot be decided on the grounds of estoppel. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 541-542, 95 L.Ed. 702 (1951). Should we conclude that the order is interlocutory, we must dismiss the appeal; the question of a court's jurisdiction may be raised at any time by the parties or sua sponte by the court. Compagnie Nationale Air France v. Castano, 358 F.2d 203, 206 (1st Cir. 1966).

Appellate courts cannot review interlocutory decisions, absent specific congressional authorization, because to do so would encourage "piecemeal disposition on appeal of what for practical purposes is a single controversy . . . ." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). The "finality doctrine," codified in 28 U.S.C. § 1291, proscribes "appeal from any decision which is tentative, informal or incomplete." Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).

In DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), the Supreme Court directly addressed the question of whether the denial of a preindictment Rule 41(e) motion for the return and suppression of illegally seized property was appealable. It held:

We hold, accordingly, that the mere circumstance of a pre-indictment motion does not transmute the ensuing evidentiary ruling into an independent proceeding begetting finality even for purposes of appealability. Presentations before a United States Commissioner, Go-Bart Co. v. United States, 282 U.S. 344, 352-354 (51 S.Ct. 153, 156-157, 75 L.Ed. 374), as well as before a grand jury, Cobbledick v. United States, 309 U.S. 323, 327 (60 S.Ct. 540, 84 L.Ed. 783), are parts of the federal prosecutorial system leading to a criminal trial. Orders granting or denying suppression in the wake of such proceedings are truly interlocutory, for the criminal trial is then fairly in train. When 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 in each such case the order on a suppression motion must be treated as "but a step in the criminal case preliminary to the trial thereof." Cogen v. United States, 278 U.S. 221, 227 (49 S.Ct. 118, 73 L.Ed. 275). Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent.

Id. at 131-32, 82 S.Ct. at 660.

In Shea v. Gabriel, 520 F.2d 879, 881-82 (1st Cir. 1975), we grappled with, but found unnecessary to resolve, the two questions inherent in the last sentence of the DiBella holding. "What does 'solely' mean in this context? When is a criminal prosecution in esse ?" In discussing the first question, we pointed out that some courts have held that a motion is not "solely for return of property" when it also seeks suppression, while others have allowed an appeal from that part of the order denying return of the property. We observed that splitting a 41(e) motion into two parts for a DiBella analysis exalted form over substance. Id. at 82, n. 6.

The words of Fed.R.Crim.P. 41(e) effectively eliminate any distinction between a motion for return of property and a motion to suppress. The rule provides:

(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.

Under the rule, if the property is restored, "it shall not be admissible in evidence at any hearing or trial." And a motion for return of the property is to be treated as one to suppress after an information or an indictment is filed. Appealability cannot turn on the title of the motion since the rule gives the same effect to both and merges a motion for return of property into one for suppression after indictment.

Appellants, here, entitled their motion, "Motion For Return Of Property And Entry Of Appropriate Writs To Effectuate The Relief Requested Herein." No mention is made in the twenty-eight page motion of Fed.R.Crim.P. 41(e), but the separate notice of motion filed in the district court states, "a motion will...