U.S. v. Gelb, 87-1349

• Decision Date: 17 August 1987
• Docket Number: No. 87-1349,87-1349
• Parties: UNITED STATES of America, Appellee, v. Bernard GELB, Barry Garfield, and EDP Medical Computer Systems, Inc., Defendants, EDP Medical Computer Systems, Inc., Defendant-Appellant. Appeal of Norman A. KAPLAN.
• Court: U.S. Court of Appeals — Second Circuit

Page 1175

826 F.2d 1175

UNITED STATES of America, Appellee, v. Bernard GELB, Barry Garfield, and EDP Medical Computer

Systems, Inc., Defendants,

EDP Medical Computer Systems, Inc., Defendant-Appellant.

Appeal of Norman A. KAPLAN.

No. 87-1349.

United States Court of Appeals, Second Circuit.

Argued Aug. 11, 1987.

Decided Aug. 17, 1987.

Norman A. Kaplan, Great Neck, N.Y., for defendant-appellant.

M. Lawrence Noyer, Jr., Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., E.D.N.Y.), for appellee.

Before WINTER and MAHONEY, Circuit Judges, and STEWART, ^* District Judge.

PER CURIAM:

On July 16, 1987, defendants Bernard Gelb and the company of which he is president, EDP Medical Computer Systems, Inc. ("EDP"), were named along with a third person in a superseding indictment, charging, inter alia, violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1961 et seq. ("RICO"). That same day, the government sought and obtained from the District Court for the Eastern District of New York (Platt, J.) an ex parte restraining order pursuant to 18 U.S.C. Sec. 1963(d)(1)(A). This section provides that

[u]pon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in subsection (a) for forfeiture under this section--

(A) upon the filing of an indictment or information charging a violation of section 1962 of this chapter and alleging that the property with respect to which the order is sought would, in the event of a conviction, be subject to forfeiture under this section ...

The restraining order essentially prohibits the disposition of any assets of EDP without thirty days notice to the government. On July 24, 1987, Gelb and EDP moved to vacate the July 16, 1987 restraining order. They apparently also sought various modifications to allow EDP to operate its business and pay counsel fees. At a hearing held three days later, Judge Platt indicated he was prepared to hear and decide defendants' motion. Instead of proceeding, however, defense counsel Norman Kaplan indicated to Judge Platt that a decision on the motion was probably unnecessary because he had reached an agreement with the government on the terms of a modified restraining order, although differences as to the order's effect on Kaplan's escrow account remained. Defendants thus prevented Judge Platt from ruling on the merits of their motion. On July 31, 1987, EDP and Kaplan took an appeal.

EDP and Kaplan have now moved this court to stay the restraining order pending their appeal and to expedite that appeal. The government responds that the order entered by the district court was, in essence, an ex parte temporary restraining order, and, as such, is not appealable. The government further contends that EDP's failure to pursue its motion to vacate in the district court leaves nothing upon which this Court may exercise its jurisdiction.

We believe the order was appealable, however. Although a post-indictment restraining order based on RICO's forfeiture provisions may issue with a minimum of process, Congress appears to have provided no durational limitation to its reach short of the termination of the related criminal prosecution. Compare 18 U.S.C. Sec. 1963(d)(1)(B) and (d)(2). A post-indictment restraining order is thus very similar to a preliminary injunction. We conclude, therefore, that because such a restraining order has a permanent effect until lifted, it is appealable. S...