Roberts v. US

• Decision Date: 13 March 1987
• Docket Number: Misc. No. M 9-150 (RWS).
• Citation: 656 F. Supp. 929
• Parties: Herbert ROBERTS, Joan Roberts and Lewis Bromberg, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

656 F. Supp. 929

Herbert ROBERTS, Joan Roberts and Lewis Bromberg, Plaintiffs, v. UNITED STATES of America, Defendant.

Misc. No. M 9-150 (RWS).

United States District Court, S.D. New York.

March 13, 1987.

Laufer & Farkash, New York City (Jacob Laufer, Leopold Laufer, Patricia M. Karish, of counsel), for plaintiffs.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (Baruch Weiss, Asst. U.S. Atty., of counsel), for defendant.

SWEET, District Judge.

This is an application pursuant to Fed.R. Crim.P. 41(e) for the court to unseal an affidavit issued in support of a search warrant and to order the return of documents illegally seized pursuant to the warrant. The motion has been made prior to any indictment. For the reasons set forth below, the application for the return of the documents is granted.

Facts

On May 27, 1986 a team of Postal Inspectors executed a search warrant at 31 East 31st Street, New York, New York. Issued by a federal magistrate, the warrant identified the target of the search as the "Business Premises of Transnational Supply Warehouse, Inc., dba `National Supply Warehouse.'" ("Transnational") According to movants, the postal inspectors searched "any and all business records on the premises," including records of entities and individuals whose names do not appear on the warrant. Whether the agents in fact searched or seized every scrap of paper on the premises, they searched a great many. The index to the search is 73 pages long (though many pages list only an item or two), and the government represented at the hearing on the present motion that so many papers were taken that it was physically impossible for the inspectors to examine individually every single document that they seized. The warrant authorized the seizure of:

Customer Files, Customer Lists, Lead Source Material, Invoices, Purchase Orders, Order Forms, Lead Cards, Sales Pitch Sheets, Price Lists, Cassettes Containing Sales Pitches, Personnel Files, Employment and Payroll Records, Financial Records, Ledgers, Cash Disbursements and Cash Receipts Journals and Ledgers, Banking Records Including Cancelled Checks, Telephone Records, Correspondence, Mail and Telegram Records, Shipping Records, United Parcel Records, Sales Literature, Contracts, Tape Recordings, Calendars and Diaries, Computer Hardware and Software, Magnetic Media, Floppy Discs, Computer Printouts, Premium Records, Bank Money Order Records, Customer Copy of Bank Money Orders, Premiums in the form of Merchandise, Gift Certificate Records, Cashiers Checks, and other records, evidence and instrumentalities of the crimes of mail fraud, wire fraud, commercial bribery and kickbacks.

There is no restriction in the warrant on whose documents were subject to seizure, no restriction as to the time period from which the documents must be, and no restriction in terms of any specific transaction to which the documents must be connected. Quite the contrary, at argument the Assistant United States Attorney represented that he could not think of a single office record not covered by the warrant. The affidavit upon whose strength the warrant was issued is sealed.

Herbert Roberts is the president of Statewide Funding Service Co., d/b/a Statewide Office Supply. Lewis Bromberg is the secretary and vice-president of the same organization. Joan Roberts is the president and sole shareholder of M.I.S.S., Inc. All three have asserted that their companies did business in a storefront at 31 East 31st Street, and that in executing the warrant on May 27, the postal inspectors seized both personal documents and documents of their businesses in violation of the Fourth Amendment. Pursuant to Rue 41(e) of the Federal Rules of Criminal Procedure, they have asked that the affidavit underlying the warrant be unsealed and/or that their wrongfully seized property be returned to them. Rule 41(e) provides that if the court returns property, the property is automatically excluded as evidence at any future trial or hearing. Thus the movants' Rule 41 application is also a motion to suppress evidence.

Movants have alleged that the inspectors seized items outside the scope of the warrant, that the warrant did not sufficiently particularize the place to be searched, and that the warrant listed so many objects of a search that the warrant was, in effect, an illegal general warrant.

The government opposes the motion primarily on the grounds that the issue is not ripe for disposition because no indictments have been voted, but it has also briefed the merits.

On October 9, 1986, the motion was argued in Part I of this court. By Memorandum Opinion of October 31, 1986, the court unsealed the affidavit for the limited purpose of in camera examination by the court, and directed the Assistant United States Attorney to deliver a copy of the affidavit to chambers, which was done on November 17, 1986.

Ripeness of the Rule 41(e) Application

The text of Rule 41(e) provides:

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.

Fed.R.Crim.P. 41(e) (1986).

Rule 41(e) thus provides for the piecemeal litigation of issues which attend the initiation of a criminal prosecution. An aggrieved party enjoys a choice under the terms of Rule 41(e) as to when to litigate an alleged illegal seizure: pre-indictment in the district of seizure, or post-indictment in the district of trial (in which case the application is treated as a Rule 12 motion to suppress). There has been no indictment yet in this case, and the property was seized within the Southern District.

In addressing Rule 41(e) exclusion applications over the years, courts have enumerated a number of policy considerations which militate against exclusion of evidence at the pre-indictment stage. Before an indictment, the court is working with information which is much more rudimentary than that which will be available at a later point in the investigation/prosecution. In general, pre-indictment Rule 41(e) motions are litigated through affidavits, DiBella v. United States, 369 U.S. 121, 129 n. 9, 82 S.Ct. 654, 659 n. 9, 7 L.Ed.2d 614 (1962), and in keeping with general practice, parties to this action proceeded by affidavit. Even in a preindictment Rule 41 application in which there has been a full evidentiary hearing, the court's grasp of the factual context of the events is skeletal compared to the detail with which the court must master the case in its later stages. As the Supreme Court has noted, the legality of a search "too often cannot truly be determined until the evidence at trial has brought all the circumstances to light." Id. at 129, 82 S.Ct. at 659. Thus on a summary hearing of a Rule 41(e) application, "the ruling ... is likely always to be tentative," id. at 132, 82 S.Ct. at 661, and "ordinarily the District Courts will wish to reserve final ruling until the criminal trial," id. at 130 n. 9, 82 S.Ct. at 659 n. 9. As one of the objects of the criminal rules "is to have all pretrial motions disposed of in a single court appearance rather than to have a series of pretrial motions made on different dates," Fed.R.Crim.P. 41 (1986) (Commentary to 1972 Amendments), some courts, as a prudential matter, have deferred the Rule 41(e) determination to the court that will try the case. See e.g., In re Grand Jury Proceedings Involving Berkley & Co., 466 F.Supp. 863, 866 (D.Minn. 1979). In doing so, the courts have also noted that this course reduces the potential for disrupting grand jury proceedings. See In re Sentinel Government Securities, 530 F.Supp. 793, 795-96 (S.D.N.Y.1982); In re Grand Jury Proceedings Involving Berkley & Co., 466 F.Supp. 863, 866-67 (D.Minn.1979).

To serve these judicially recognized interests, some district courts have required movants to show "irreparable harm" before a pre-indictment Rule 41(e) application will be granted. See, e.g., In re Sentinel Gov't Sec., 530 F.Supp. 793, 746 (S.D.N.Y. 1982) (Haight, J.); In re Grand Jury Proceedings Involving Berkley & Co., 466 F.Supp. 863, 866 (D.Minn.1979). See also Standard Drywall v. United States, 668 F.2d 156, 157 (2d Cir.), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982) (describing district court's standard but not passing on it). To one court using this standard, the irreparable harm requirement meant that "consideration of the target's Fourth Amendment claims must be deferred to a motion to suppress evidence under Rule 12, `in the absence of seizure of some unique property or privileged documents' ..." In re Sentinel Govt. Sec., 530 F.Supp. at 797 (Haight, J.) (quoting Standard Drywall, Inc. v. United States, 668 F.2d 156, 157 n. 2 (2d Cir.), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982) (dicta)). Following Second Circuit dicta in Standard Drywall, 668 F.2d at 157 n. 2, the Sentinel court reasoned that the modern miracle of photocopying prevents there from being irreparable injury when the objects of the contested seizure are non-privileged documents; the government can duplicate the documents so that it can have copies to proceed in its investigation and the aggrieved party can have copies to continue to conduct its business. Sentinal Gov't Sec., 530 F.Supp. at 795.

Since these cases, however, the Supreme Court has spoken plainly on the subject of court's carving exceptions out of the Federal Rules. In discussing judicial...