Shea v. Gabriel, No. 75-1096
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
| Writing for the Court | Before COFFIN, Chief Judge, McENTEE and CAMPBELL; McENTEE |
| Citation | 520 F.2d 879 |
| Parties | Thomas SHEA, Plaintiff-Appellant, v. James GABRIEL, United States Attorney, et al., Defendants-Appellees. |
| Docket Number | No. 75-1096 |
| Decision Date | 04 August 1975 |
Page 879
v.
James GABRIEL, United States Attorney, et al., Defendants-Appellees.
First Circuit.
Decided Aug. 4, 1975.
Charlotte Anne Perretta, Boston, Mass., with whom Kevin M. Keating, Boston, Mass., was on brief, for plaintiff-appellant.
Anne T. Wallace, Atty., Dept. of Justice, with whom James N. Gabriel, U. S. Atty., Jeremiah O'Sullivan, Sp. Atty., and Shirley Baccus-Lobel, Atty., Dept. of Justice, were on brief, for defendants-appellees.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
On December 14, 1974, federal agents served three search warrants on appellant Shea, authorizing them to search his person, automobile, and residence for various items commonly associated with gambling. The agents seized a number of things under this authority, including approximately $4,368 arranged in bundles of various denominations. 1 On February
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12, 1975, Shea filed a complaint invoking the jurisdiction of the court under its inherent power to discipline its officers and to order suppression and return of illegally seized property, see Go-Bart Importing Co. v. United States, 282 U.S. 344, 353-55, 51 S.Ct. 153, 75 L.Ed. 374 (1931), and under Rule 41(e) of the Federal Rules of Criminal Procedure. 2 Among other relief Shea sought to examine the affidavit upon which the warrants were based and to have the court, "after trial, enter a formal order suppressing and/or returning" to him the items seized. At the hearing on this complaint the government made the following representations to the court. 3"1. The Government's ongoing two-year investigation would be compromised by revealing at this juncture the contents of its very extensive master affidavit for search warrants (including those directed at Appellant SHEA) since, for example, many potential witnesses would thereby be in a position to tailor their testimony if so inclined; and
"2. The ongoing Grand Jury investigation into violations of 18 U.S.C. § 1955 extends to persons and events covered in the master affidavit; and
"3. In this regard, the Government intended to submit for the Grand Jury's consideration the items seized from Mr. SHEA pursuant to warrants."
After an in camera examination of the affidavit submitted for the search warrants, the court declined to order its disclosure:
"It is a long document involving many persons and events. It contains a colorable basis for the issuance of the warrants. In balancing the slim likelihood of present benefit to the plaintiff from examination of the affidavit against the possible jeopardy (to) the Government's investigation by revelation of its contents, I am of the opinion that compelling equitable and practical considerations favor the Government's position."
The court also refused to order suppression or return of the property, on the ground that the "prejudice to plaintiff by delayed return to him of the property is outweighed by the legitimate and appropriate governmental interest (in) using the property as evidence before the grand jury." 4 This appeal followed.
We first consider our jurisdiction. In DiBella v. United States,369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), the Court held that denial of a pre-indictment motion to suppress evidence was not a final decision and therefore
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was not immediately appealable. That holding governs here. Both appellants in DiBella were indicted before the district court's denial of the pre-indictment motion, but we decline to attach significance to that distinction. Appellate consideration of suppression motions in the circumstances here potentially involves similar undue interference with the criminal justice system and is still piecemeal. Since appellant cannot prevent the grand jury from using the seized items and their fruits to question him, even if the seizure was illegal, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), that issue does not require recognizing appealability. To our knowledge Shea is not under arrest, has not been indicted, and has not had forfeiture proceedings started against his seized property. 5 In fact, it may be that Shea will not be indicted at all. In these circumstances we do not see any interest that would be served by finding denial of the suppression order appealable. On the other hand, if Shea is indicted and convicted, there will be an adequate chance for appellate review after the district court imposes sentence. Therefore, insofar as the appeal is from the denial of the suppression aspect of the...To continue reading
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United States v. One 1978 Cadillac Sedan De Ville, No. 79 Civ. 601 (WCC).
...conducted by Pisacano. In several decisions, the courts have commented upon the importance of such an investigation. See Shea v. Gabriel, 520 F.2d 879 (1st Cir. 1975) (the Government's interest in secrecy in its ongoing investigation outweighed claimant's interest in the temporary loss of h......
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U.S. v. Hubbard, Nos. 79-2312
...to protect the secrecy of an ongoing criminal investigation. See In re Sealed Affidavits, 600 F.2d 1256 (9th Cir. 1979); Shea v. Gabriel, 520 F.2d 879, 880, 882 (1st Cir. 85 See, e. g., Doe v. Webster, 606 F.2d 1226, 1233 (D.C.Cir.1979) (Federal Youth Corrections Act permits expungement of ......
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U.S. v. Premises Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pa., No. 77-2408
...amendment due process rights. The district court on May 3 denied the motion. 3 The court followed the rule in Page 1300 Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir. 1975), that the government's retention of seized property without commencing some sort of proceeding would violate the Constit......
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Klitzman, Klitzman & Gallagher v. Krut, Civ. A. No. 84-2180.
...v. Central Mine Equipment Co., 608 F.2d 719, 721 (8th Cir.1979), and a favorable balancing of the equities. See, e.g., Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir.1975) (balancing government's interest in protecting secrecy of investigation against movant's temporary loss or property). See ......
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U.S. v. Hubbard, Nos. 79-2312
...to protect the secrecy of an ongoing criminal investigation. See In re Sealed Affidavits, 600 F.2d 1256 (9th Cir. 1979); Shea v. Gabriel, 520 F.2d 879, 880, 882 (1st Cir. 85 See, e. g., Doe v. Webster, 606 F.2d 1226, 1233 (D.C.Cir.1979) (Federal Youth Corrections Act permits expungement of ......
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United States v. One 1978 Cadillac Sedan De Ville, No. 79 Civ. 601 (WCC).
...conducted by Pisacano. In several decisions, the courts have commented upon the importance of such an investigation. See Shea v. Gabriel, 520 F.2d 879 (1st Cir. 1975) (the Government's interest in secrecy in its ongoing investigation outweighed claimant's interest in the temporary loss of h......
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Documents Seized Pursuant to a Search Warrant, Matter of
...463 U.S. 418, 103 S.Ct. 3133, 77 L.Ed.2d 743 see Consumer Credit Insurance Agency Inc. v. United States, 599 F.2d 770 cf. Shea v. Gabriel, 520 F.2d 879 In the Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 461 N.Y.S.2d 773, 448 N.E.2d 448 CPL On the other hand, the Supreme Co......
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U.S. v. Premises Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pa., No. 77-2408
...amendment due process rights. The district court on May 3 denied the motion. 3 The court followed the rule in Page 1300 Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir. 1975), that the government's retention of seized property without commencing some sort of proceeding would violate the Constit......