Mr. Lucky Messenger Service, Inc. v. U.S., 78-1409

Citation587 F.2d 15
Decision Date13 November 1978
Docket NumberNo. 78-1409,78-1409
PartiesMR. LUCKY MESSENGER SERVICE, INC., Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Daniel C. Meenan, Jr., Chicago, Ill., for plaintiff-appellant.

William A. Barnett, Jr., Asst. U. S. Atty., Chicago, Ill., for defendants-appellees.

Before CUMMINGS, PELL and WOOD, Circuit Judges.

PELL, Circuit Judge.

This appeal requires us to define the limits of the Government's power to seize and withhold a person's property pursuant to a criminal investigation within a reasonable period of time without thereafter justifying the seizure either with an indictment or in some other appropriate manner. On April 22, 1977, FBI agents entered the premises of the plaintiff, Mr. Lucky Messenger Service, pursuant to a search warrant issued in aid of a grand jury investigation that had begun on March 4, 1977. The agents seized $65,000 in United States currency, among other things. Subsequent to this seizure, neither plaintiff nor any of its agents or employees has been charged with a criminal offense.

On November 17, 1977, the plaintiff filed suit in district court requesting the court on equitable grounds to order the currency returned. The plaintiff then filed a motion for preliminary injunctive relief to have a portion of the funds applied to the satisfaction of an admitted tax liability of $36,533.15 plus interest. On February 28, 1978, the district court denied the plaintiff's motion for preliminary relief and granted the defendants' motion to dismiss. This appeal followed.

Our jurisdiction to hear this appeal is well established. The denial of a motion for return of property is a final appealable order "(o)nly if the motion 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). The motion for return of property is not one tied to a criminal prosecution in esse against the movant until the criminal process shifts from the investigatory phase to the accusatory. See Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir. 1975). In the present case, no charges have been filed and thus the criminal process, if still alive, is at best in the investigatory stage. Accordingly, the district court's order is a final appealable order.

The more typical action for return of seized property arises under Rule 41(e), Fed.R.Crim.P., which permits the district court to order the return of property which was illegally seized. Courts, however, have additionally recognized an independent cause of action for return of property based on the general equitable jurisdiction of the federal courts. See Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975); Hunsucker v. Phinney, 497 F.2d 29, 32 (5th Cir. 1974), Cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). The district court's jurisdiction over such actions should be exercised cautiously and subject to general equitable principles. Id. at 34.

In Hunsucker, the court listed some factors that a district court should consider before exercising its equitable jurisdiction. One of these factors is whether "the action which Hunsucker seeks to attack involved a 'callous disregard for . . . constitutional rights.' " Id. The Government's primary argument in the present case is that the seizure was made pursuant to a valid search warrant and thus was not made in callous disregard of the plaintiff's constitutional rights; ergo, the district court properly declined to exercise equitable jurisdiction. This argument is unpersuasive for several reasons. First, in all the cases that applied this factor the plaintiff sought not only the return of the seized property, but also the suppression of that property as evidence in any forthcoming trial. It is this latter request that required the court to consider whether the property was seized in callous disregard of the plaintiff's constitutional rights. In the present case, the plaintiff does not request that the seized property be suppressed, and accordingly the circumstances of the seizure are irrelevant. Second, the proper application of this factor to this case would probably militate in favor of granting equitable relief. The action which the plaintiff seeks to attack is not the legality of the search, but rather the unreasonable length of time that the Government has held the seized property...

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52 cases
  • Special Investigation No. 228, In re, 318
    • United States
    • Court of Special Appeals of Maryland
    • April 7, 1983
    ...of wrongful withholding not to permit him to make a copy of it to submit to the licensing authority. And cf. Mr. Lucky Messenger Service v. United States, 587 F.2d 15 (7th Cir.1978) (the withholding by the Government of $65,000 in seized currency, even following a lawful seizure, for 17 mon......
  • White Fabricating Co. v. U.S.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 8, 1989
    ...95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. Rapp, 539 F.2d 1156, 1160-61 (8th Cir.1976); and Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15 (7th Cir.1978); 2 see also Pieper v. United States, 604 F.2d 1131, 1133 (8th Cir.1979) ("[T]he District Court's equitable j......
  • Klitzman, Klitzman & Gallagher v. Krut
    • United States
    • U.S. District Court — District of New Jersey
    • June 25, 1984
    ...question but that courts may utilize their equitable power to order pre-indictment relief. See, e.g., Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15, 16-17 (7th Cir. 1978); Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir.1975); Lowrie v. United States, 558 F.Supp. 1029, 10......
  • Andersen v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 30, 2002
    ...716 F.2d 493, 496 (8th Cir.1983); Sovereign News Co. v. United States, 690 F.2d 569, 571 (6th Cir.1982); Mr. Lucky Messenger Serv., Inc. v. United States, 587 F.2d 15, 16 (7th Cir.1978). But see United States v. Regional Consulting Serv., 766 F.2d 870 (4th Cir.1985); United States v. Furina......
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