U.S. v. Bein

• Decision Date: 05 June 2000
• Docket Number: No. 99-3822,99-3822
• Citation: 214 F.3d 408
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA , v. ESTHER BEIN and WILLIAM BEIN, Appellants
• Court: U.S. Court of Appeals — Third Circuit

Page 408

214 F.3d 408 (3rd Cir. 2000)

UNITED STATES OF AMERICA , v. ESTHER BEIN and WILLIAM BEIN, Appellants.

No. 99-3822

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued May 9, 2000

Filed June 5, 2000

Stanley W. Greenfield (argued), Daniel J. Kraut, Greenfield, Brewer & Kay, Pittsburgh, PA, Attorneys for Appellants.

Harry Litman, United States Attorney, Bonnie R. Schlueter (argued), Assistant United States Attorney, Pittsburgh, PA, Attorney for Appellee.

Before: GREENBERG, McKEE, and GARTH, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter is before this court on an appeal by Esther and William Bein from an order of the district court entered August 18, 1999, denying their motion to amend or alter an order entered July 9, 1999, denying in part their motion pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure for return of property. The Beins, alleging the Government wrongfully had destroyed or failed to return their property, filed their Rule 41(e) motion to recover compensatory damages or the return of the property. The district court granted the motion in part, awarding damages in the amount of $ 2,450, and ordering the Government to return a cart in its possession. The court, however, denied the Beins' motion with respect to their claim for losses of other property. The Beins appeal, seeking additional damages.

Although the Government has not appealed, it asserts, as it did in the district court, that the court did not have jurisdiction to entertain the Beins' Rule 41(e) motion to the extent that it sought compensatory damages. Because we find that sovereign immunity bars a claim against the Government seeking money damages under Rule 41(e), we will vacate the order of the district court entered July 9, 1999, insofar as it awarded damages. We do not, however, disturb the order with respect to the return of the cart. Inasmuch as the district court did not have jurisdiction to award damages, we do not consider on the merits the arguments the Beins raise as they advance them only in an attempt to recover additional damages. Thus, we will affirm the order of August 18, 1999, denying the Beins' motion to amend the order of July 9, 1999.

This matter arises out of the investigation and arrest of the Beins and their subsequent prosecution in the district court. On October 3, 1994, agents of the Federal Bureau of Investigation arrested the Beins who then were charged with conspiracy and interstate transportation of stolen merchandise. Following the filing of a superseding indictment, the Beins pleaded guilty to conspiracy to commit interstate transportation of stolen property and conspiracy to launder money.

At the time of the Beins' arrest, the Government executed search warrants at their home and at their wholesale toiletries and pharmaceutical products business.¹ The Government maintained an inventory of all items that were seized. See app. at 9-25. At the Beins' sentencing hearing, the court directed the Government to return all non-contraband items to the Beins.

There is no dispute that the Government returned certain items to the Beins. Nevertheless, the Beins filed their motion pursuant to Fed. R. Civ. P. 41(e) as they asserted that the Government did not return many items seized and instead destroyed them. Consequently, in their Rule 41(e) motion the Beins largely sought to recover monetary damages to compensate them for their loss. Indeed, the Beins acknowledge that the Government told them before they filed their Rule 41(e) motion that the property it had not returned had been destroyed.

The Beins alleged in particular that the Government improperly had destroyed (1) documentation of goods sold to certain entities, (2) gemachs,² (3) certain warehouse merchandise, (4) six carts, (5) photographs, (6) keys, (7) memorabilia, (8) two briefcases (9) documents related to a particular lawsuit, (10) computer programs, (11) an airline ticket, (12) certain important papers and invitations, (13) a fax machine, and (14) documents relating to the repair of a property in Canada the Beins owned. As we have indicated, the district court determined that the Government retained in its possession one of the six carts for which the Beins sought damages and ordered its return, a matter not in issue on this appeal. The court further determined that the Government wrongfully had destroyed five carts, the keys, a fax machine and wedding and bar mitzvah invitations. Inamsuch as the Government could not return these items, the court awarded the Beins $ 2,450 in damages to compensate them for their loss. The district court found, however, that the Beins had not established that the Government took possession of the remaining property or had not presented adequate proof of damages for its loss. The Beins have appealed from the order of the district court to the extent it denied their Rule 41(e) motion seeking damages for this remaining property. We have jurisdiction over their appeal pursuant to 28 U.S.C. 1291.

II. DISCUSSION

It is well settled that the Government may seize evidence for use in investigation and trial, but that it must return the property once the criminal proceedings have concluded, unless it is contraband or subject to forfeiture. See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999); see also United States v. Premises Known as 608 Taylor Ave., Apartment 302, 584 F.2d 1297, 1302 (3d Cir. 1978); United States v. Wilson, 176 U.S. App. D.C. 321, 540 F.2d 1100, 1103 (D.C. Cir. 1976) (district court has both the jurisdiction and duty to return property against which no government claim lies). A person aggrieved by the deprivation of property may file a motion under Rule 41(e) to request its return. See Chambers, 192 F.3d at 376; Government of Virgin Islands v. Edwards, 903 F.2d 267, 273 (3d Cir. 1990). A district court has jurisdiction to entertain a motion for return of property even after the termination of criminal proceedings against the defendant and such an action is treated as a civil proceeding for equitable relief. See United States v. McGlory, 202 F.3d 664, 670 (3d Cir. 2000) (en banc); Chambers, 192 F.3d at 376-77 (citing United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987); Rufu v. United States, 20 F.3d 63, 65 (2d Cir. 1994); Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995)). Further, even if it is alleged that the property the movant seeks to have returned is no longer within the Government's possession, the district court has jurisdiction to determine whether such property had been in its possession and whether it wrongfully disposed of such property. See Chambers, 192 F.3d at 378.

The Beins filed their Rule 41(e) motion primarily seeking not the return of their property, but rather compensatory damages for property they alleged the Government wrongfully destroyed. The Government asserts the district court did not have subject matter jurisdiction to address such a claim under Rule 41(e).³ For the reasons set forth below, we find that, as a result of the Government's immunity from suit, the district court lacked subject matter jurisdiction over the Beins' claims for monetary damages.

While the Government has not appealed from the order entered in the district court, it asserts that, based upon its sovereign immunity, the district court did not have jurisdiction to enter a claim for monetary damages as relief on a Rule 41(e) motion. See Appellee Br. at 4-6. But the Government need not have appealed formally from the order of the district court for us to consider this issue as a claim of sovereign immunity advances a jurisdictional bar which a party may raise at any time, even on appeal, and which the court may raise sua sponte. See Brown v. Secretary of the Army, 316 U.S. App. D.C. 284, 78 F.3d 645, 648 (D.C. Cir. 1996); see also United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514, 60 S. Ct. 653, 657, 84 L. Ed. 894 (1940) ("Consent alone gives jurisdiction to adjudicate against a sovereign. Absent that consent, the attempted exercise of judicial power is void.").

It is a fundamental principle of sovereign immunity that federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States' immunity to suit. See United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 2965, 77 L. Ed. 2d 580 (1983). Moreover, when the Government does consent to be sued, "the terms of [the] waiver of sovereign immunity define the extent of the court's jurisdiction." United States v. Mottaz, 476 U.S. 834, 841, 106 S. Ct. 2224, 2229, 90 L. Ed. 2d 841 (1986). "Waivers of the Government's sovereign immunity, to be effective, must be 'unequivocally expressed,' " and any such waiver must be construed strictly in favor of the sovereign. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011, 1014-15, 117 L. Ed. 2d 181 (1992).

As we have indicated, we are concerned with Fed. R. Crim. P. 41(e) which reads:

Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. 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.

Inasmuch as Rule 41(e) motions are treated as civil equitable actions, see n.3, supra, in light of...