Sovereign News Co. v. U.S., 80-3197

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS; BOYCE F. MARTIN, Jr.
• Citation: 690 F.2d 569
• Parties: SOVEREIGN NEWS CO., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Docket Number: No. 80-3197,80-3197
• Decision Date: 11 January 1983

Page 569

690 F.2d 569 SOVEREIGN NEWS CO., Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee. No. 80-3197. United States Court of Appeals,
Sixth Circuit. Argued Oct. 15, 1981.
Decided Oct. 6, 1982.
Rehearing Denied Nov. 3, 1982.
Rehearing and Rehearing En Banc Denied Jan. 11, 1983.

Page 570

Bernard Berkman (argued), Cleveland, Ohio, for plaintiff-appellant.

Steven Olah, U.S. Dept. of Justice, Cleveland, Ohio, Patty Merkamp Stemler (argued), U.S. Dept. of Justice, Appellate Section, Criminal Div., Washington, D.C., for defendant-appellee.

Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

The Sovereign News Company appeals an order denying a motion for the return of copies of property seized during an obscenity investigation. The United States seized certain films, books, and business records during the investigation which culminated in a 1978 trial and acquittal. After the trial, the government returned all original evidence, but retained copies of the business

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records. Sovereign News then filed this motion under Fed.R.Crim.P. 41(e), claiming that the government must also return the copies because the originals were illegally seized. In 1976, while the obscenity proceedings were pending, Sovereign News filed a similar motion relating to the original evidence. This court held that it did not have jurisdiction to hear the 1976 motion because of the ongoing obscenity prosecution. Sovereign News Company v. United States, 544 F.2d 909 (6th Cir. 1976) (per curiam), cert. denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 73 (1977). In the present matter, the United States urges us to reach a similar holding of "no jurisdiction" because the government claims the business records in question are now relevant to an ongoing criminal tax investigation.

Sovereign News, on the other hand, contends that the government obtained the business records as the result of two illegal searches on March 19 and 25, 1975, made in reliance on invalid search warrants.

Both parties' arguments are without merit. We assert jurisdiction over the appeal and affirm the decision of the District Court. However, we hold that when the government has no further legitimate use for the records, it must return the copies as well as the originals.

I. Jurisdiction

The government bases its jurisdictional argument on our decision in the first Sovereign News case and DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). In DiBella, the Supreme Court held that the denial of a motion for the return of property is appealable only if it is not tied to a criminal prosecution in esse, i.e., in progress. 369 U.S. at 131-32, 82 S.Ct. at 660. However, if a prosecution is in progress, "(the 41(e) motion) shall be treated also as a motion to suppress under Rule 12." Fed.R.Crim.P. 41(e). Motions to suppress evidence are "truly interlocutory" and not appealable. DiBella v. United States, 369 U.S. at 131, 82 S.Ct. at 660. Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929). The government contends that since a grand jury allegedly has been empanelled to hear the results of the tax investigation, we must apply the DiBella rule again. We disagree.

The government admits that it did not raise this question before the District Court and that the issue does not appear on the record. A party may not by-pass the fact-finding process of the lower court and introduce new facts in its brief on appeal. Richardson v. Blanton, 597 F.2d 1078, 1079 (6th Cir. 1979), cert. denied, 444 U.S. 886, 100 S.Ct. 180, 62 L.Ed.2d 117 (1979). Therefore, we decline to exercise any discretion we might have under the "plain error" doctrine. Fed.R.Crim.P. 52(b). Fed.R.App.P. 10(e). United States v. Bowling, 351 F.2d 236, 241 (6th Cir. 1965), cert. denied, 383 U.S. 908, 86 S.Ct. 888, 15 L.Ed.2d 663 (1966). Additionally, the criminal prosecution must be "in being" to render a 41(b) motion interlocutory. A criminal prosecution is not "in being" if it is still in the investigatory stage. Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15, 16 (7th Cir. 1978).

Because no indictment has been issued and no charges have been filed in any tax proceeding, the District Court's decision is a final appealable order. While we do not establish any hard and fast rule for determining when a criminal prosecution becomes "in being" for purposes of the DiBella rule, we find that the mere possibility of a prosecution is too remote "to deprive the district court's order of finality." United States v. Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1301 (3d Cir. 1978). In the present case, the government seized appellant's business records in 1975 for an obscenity investigation which ended in 1978. It is now 1982. We will not permit the government to characterize the present appeal as "interlocutory" because the same evidence may or may not be relevant to a completely different investigation. In so doing, we would postpone appellant's access to appellate review indefinitely. We do not interpret DiBella to require such a result. United States v. Premises Known as 608 Taylor Ave., 584 F.2d at 1301. See also Hunsucker v. Phinney, 497 F.2d 29 (5th Cir.

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1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975).

II. The Searches

A. The First Search

The government conducted the first search on March 19, 1975. Sovereign News challenges the validity of that search on two grounds. First, it contends that the search warrant was invalid because of a misrepresentation by the issuing magistrate. Second, Sovereign News contends that the government agents committed a separate illegal seizure by taking notes of other evidence unrelated to the items listed in the search warrant.

On March 14, FBI Agent George Grotz presented ten films and several stacks of magazines to Magistrate Herbert T. Maher. Magistrate Maher viewed between three and five of the films in their entirety. He then viewed selected sections of other films by holding them up to a light to determine if they were similar to the other films. Finally, he examined the contents of the top magazine in each stack before him.

On March 18, Grotz and United States Postal Inspector Ronald Baranowski appeared before Maher seeking a search warrant for the premises of Sovereign News. In support of the warrant, Grotz and Baranowski submitted an affidavit which listed the titles of the ten films and forty-nine magazines which Grotz and Baranowski described as obscene and believed to be in Sovereign News' warehouse. The affidavit stated that, based on information received from a confidential informant, federal agents in Texas had intercepted these films and magazines in packages mailed by Sovereign News in Cleveland to an "adult bookstore" in Fort Worth. The affidavit stated that Agent Grotz had reviewed the contents of all the items listed and described those contents as depicting "acts of sexual intercourse, fallatio (sic), cunnilingus, analingus, ejaculation and masturbation." The remainder of the thirty-three-page affidavit detailed the facts and circumstances supporting the belief that the Sovereign News Company was engaged in the interstate transportation of similar magazines and films.

On the basis of the affidavit and his own examination, Magistrate Maher issued a search warrant which authorized the seizure of three evidentiary copies of each of the ten films and forty-nine magazines named in the affidavit. The magistrate attached the affidavit to the warrant as Exhibit B and attached a list of the films and magazines as Exhibit A. The warrant also authorized the seizure of "records, receipts, notations, bills of lading, journals, ledgers, billing invoices, inventories and other documents reflecting the importation, receipt, and shipment of the aforementioned obscene material in interstate commerce or by the U.S. Postal Service." In the space reserved for the "facts tending to establish the foregoing grounds for issuance of a Search Warrant," Magistrate Maher first listed "See attached affidavit: Exhibit B." He then added that "(o)n March 14, 1975, U.S. Magistrate Herbert T. Maher was presented with and did examine copies of the magazines and motion picture films listed in Exhibit A."

Sovereign News argues that this misstatement on the face of the warrant invalidated the warrant under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, the Supreme Court held that a defendant could challenge the veracity of a warrant affidavit. Id. at 165, 98 S.Ct. at 2681. The Court sought to avoid deception of the magistrate by the affiant. The danger of deception does not exist here. Sovereign News does not contend that the affidavit was false or misleading in any way. Therefore, Franks, which concerns false affidavits, does not control the instant case.

Furthermore, Magistrate Maher went beyond the law's requirements by personally examining the target materials. He could have issued the warrant on the basis of the affidavit alone. Instead, he investigated a representative sample of the materials presented to him. United States v. Espinoza,

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641 F.2d 153, 162-64 (4th Cir. 1981), cert. denied, 454 U.S. 841, 102 S.Ct. 153, 70 L.Ed.2d 125 (1981); United States v. Thomas, 613 F.2d 787, 790 (10th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 245, 66 L.Ed.2d 114 (1980). United States v. Middleton, 599 F.2d 1349 (5th Cir. 1979). In this case, as in Middleton, the affidavit "related these passages in graphic detail, thereby enabling the magistrate 'to focus searchingly on the question of obscenity.' " 599 F.2d at 1359. Magistrate Maher's action was a good faith effort to protect the appellant's rights. His statement on the warrant did not compromise the validity of the information he had received and was at worst a superfluous...