Smith, In re, No. 89-5114
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | Before WALD, Chief Judge, EDWARDS and SILBERMAN; PER CURIAM; PER CURIAM |
| Citation | 888 F.2d 167 |
| Parties | In re Warrantless Seizure, Barry Bernard SMITH. |
| Docket Number | No. 89-5114 |
| Decision Date | 27 October 1989 |
Page 167
District of Columbia Circuit.
Allan M. Palmer, Washington, D.C., appeared on the motion forsummary reversal filed by the appellant.
John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., appeared on the motion to remand.
Before WALD, Chief Judge, EDWARDS and SILBERMAN, Circuit Judges.
On Motion for Summary Reversal and Motion to Remand
Order and Memorandum for the Court filed PER CURIAM.
Upon consideration of appellant's motion for summary reversal; appellee's motion for remand; and this court's order to show cause of August 3, 1989, and the response thereto, it is
ORDERED that the order to show cause be discharged. It is
FURTHER ORDERED that the motion for summary reversal be denied. It is
Page 168
FURTHER ORDERED that the motion for remand be granted for the reasons stated in the attached opinion.
The Clerk is directed to issue forthwith a certified copy of this order to the district court in lieu of formal mandate.
PER CURIAM:
Appellant Barry Bernard Smith initiated an action in the district court pursuant to Federal Rule of Criminal Procedure 41(e), seeking the return of money seized from him by law enforcement officials at Union Station. In an order filed April 17, 1989, the district court denied Smith's motion by fiat. For the reasons that follow, the case is remanded to the district court for further proceedings.
The government presented two arguments to the district court in opposition to the Rule 41(e) motion. First, the government contended that the motion was ineffective since Rule 41(e) can be used only to recover items seized illegally. Because the search of Smith which led to discovery of the money was consensual, the government claimed that the seizure was not illegal and Rule 41(e) was not applicable. Second, the government maintained that even had the money been seized illegally, Smith's Rule 41(e) motion was ineffective in view of the money's evidentiary value in an ongoing grand jury investigation. The government's arguments are unavailing.
Contrary to the government's assertion, a consensual search is not equivalent to a lawful seizure. Nor is the existence of an ongoing grand jury proceeding, without more, a sufficient basis for withholding the money seized. The government's reliance on United States v. Calandra, 414 U.S. 338...
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United States v. Ganias, No. 12-240-cr
...to the property and its use in later proceedings.’ ” Ganias , 2011 WL 2532396, at *8 (citation omitted) (first quoting In re Smith , 888 F.2d 167, 168 (D.C. Cir. 1989) (per curiam); then quoting Fed. R. Crim. P. 41(g) ).Rule 41(g) thus provides a potential mechanism, in at least some contex......
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IN RE APPLICATION OF MADISON, No. 09-mc-647 (DLI).
...by the petitioners persuades the court otherwise, as they are either distinguishable, from outside this Circuit, or both. See In re Smith, 888 F.2d 167, 168 (D.C.Cir.1989) ("district court must balance the interests of the government in holding the property against movant's interest"); Inte......
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In re $15,379 In U.S. Currency, No. 2 CA–CV 2015–0166
...government "may not in all cases insist on holding the [property] itself as evidence to be presented to the jury"); In re Smith , 888 F.2d 167, 168 (D.C. Cir. 1989) (per curiam) ("bald assertion" that money has evidentiary value is insufficient to justify withholding property). The procedur......
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In re In re, No. 2 CA–CV 2015–0166
...government "may not in all cases insist on holding the [property] itself as evidence to be presented to the jury"); In re Smith, 888 F.2d 167, 168 (D.C. Cir. 1989) (per curiam) ("bald assertion" that money has evidentiary value is insufficient to justify withholding property). The procedura......
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United States v. Ganias, No. 12-240-cr
...to the property and its use in later proceedings.’ ” Ganias , 2011 WL 2532396, at *8 (citation omitted) (first quoting In re Smith , 888 F.2d 167, 168 (D.C. Cir. 1989) (per curiam); then quoting Fed. R. Crim. P. 41(g) ).Rule 41(g) thus provides a potential mechanism, in at least some contex......
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IN RE APPLICATION OF MADISON, No. 09-mc-647 (DLI).
...by the petitioners persuades the court otherwise, as they are either distinguishable, from outside this Circuit, or both. See In re Smith, 888 F.2d 167, 168 (D.C.Cir.1989) ("district court must balance the interests of the government in holding the property against movant's interest"); Inte......
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In re $15,379 In U.S. Currency, No. 2 CA–CV 2015–0166
...government "may not in all cases insist on holding the [property] itself as evidence to be presented to the jury"); In re Smith , 888 F.2d 167, 168 (D.C. Cir. 1989) (per curiam) ("bald assertion" that money has evidentiary value is insufficient to justify withholding property). The procedur......
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In re In re, No. 2 CA–CV 2015–0166
...government "may not in all cases insist on holding the [property] itself as evidence to be presented to the jury"); In re Smith, 888 F.2d 167, 168 (D.C. Cir. 1989) (per curiam) ("bald assertion" that money has evidentiary value is insufficient to justify withholding property). The procedura......