U.S. v. One Residence and Attached Garage of Anthony J. Accardo Designated as 1407 Ashland Ave., River Forest, Ill., and Located on Northeast Corner at Intersection of Ashland Ave. and Greenfield, No. 78-2485

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation603 F.2d 1231
Decision Date02 July 1979
Docket NumberNo. 78-2485

Page 1231

603 F.2d 1231
UNITED STATES of America, Plaintiff-Appellee,
Appeal of Anthony J. ACCARDO, Movant.
No. 78-2485.
United States Court of Appeals,
Seventh Circuit.
Argued Feb. 27, 1979.
Decided June 29, 1979.
As Amended July 2, 1979.

Page 1232

Carl M. Walsh, Chicago, Ill., for movant-appellant.

Charles C. Wehner, Chicago Strike Force, Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, BAUER and WOOD, Circuit Judges.

BAUER, Circuit Judge.

The issue herein presented is the appealability by movant-appellant of an order denying his "pre-indictment" motion for return of property pursuant to Rule 41(e), Fed.R.Crim.P. 1 Appellant claims the adverse order is final and appealable pursuant to 28 U.S.C. § 1291, whereas the government argues the order is interlocutory and not appealable.

The facts of this case, insofar as they are defined for purposes of this appeal, are strange but straightforward up to a point. Certain of the facts are apparently uncontested.

Anthony J. Accardo and his wife own, in joint tenancy, a residence in River Forest, Illinois. In January of 1978, Mr. and Mrs. Accardo were vacationing in California. Several people mostly relatives had access to the premises for various purposes. A nonrelative, one Michael Volpe, also had access to the premises; he apparently was employed by Accardo as a handyman. Volpe discovered a forced entry of the Accardo residence in January, 1978, and notified Accardo of that fact. Mr. Accardo immediately returned to River Forest.

It is interesting to note that neither Volpe nor Accardo notified any law enforcement agency, state or federal, about the break-in. As a matter of fact, the record before us is silent as to how the police eventually discovered that a burglary had occurred. The record is also silent as to whether the failure to report the fact to the police was based on a lack of faith in the powers of the police to solve the crime or a basic mistrust of dealing with law enforcement agencies that has roots in some earlier, and also unexplained, experience of Accardo.

At any rate, some time after the burglary shortly thereafter, as a matter of fact various people described by the government as "known burglars" began showing up dead, none from natural causes, in the Chicago Metropolitan area. 2

The sudden increase of homicides within a particular, and one might hope, limited professional group, apparently fanned the normally suspicious attitudes of the various law enforcement agencies to a fevered pitch. Eventually, the Federal Bureau of Investigation began to look into the facts and circumstances herein described.

At some point during the federal investigation certain people were brought before a grand jury to shed some light on the events; these included members of the Accardo family and also Mr. Michael Volpe,

Page 1233

the handyman. 3 Sometime after Mr. Volpe's appearance before the grand jury and while he was still subject to recall before that body, he left his home for his usual place of employment the Accardo residence and seemingly disappeared from human knowledge.

This final mysterious touch to the affair led the Department of Justice, acting through a Special Attorney and the Federal Bureau of Investigation, to seek and secure a search warrant for the premises of the Accardos for the purpose of locating

"personal effects including keys, wallet, credit cards, jewelry, clothing and automobile of Michael Joseph Volpe and evidence of destruction by incineration and secreting of the above items which are evidence of the obstruction of justice by person or persons unknown by endeavoring to secrete, make unavailable, and/or abduct Michael Joseph Volpe, a witness before the Special September 1978 Grand Jury."

The warrant issued and the agents went to the Accardo home. They were admitted by one of the Accardo daughters. After photographing the interior, the agents seized the following items:

1. a Regency police scanner;

2. a memo address pad;

3. a pair of cuff links (taken from a dresser drawer);

4. some debris burnt ashes and "residue" from the incinerator;

5. two Smith and Wesson revolvers (taken from a safe in the basement); and

6. $275,000 in cash (found in box also in the safe or vault).

It is these seized items that are the subject matter of the instant appeal. The government states that those items seized, not on the original warrant, were covered by the "plain view" doctrine and were subject to lawful seizure while the agents were engaged in a search pursuant to a lawful search warrant. The government concedes that "(t)here must, of course, be a nexus . . . between the item(s) to be seized and criminal behavior." Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967); United States v. Schire, 586 F.2d 15, 19 (7th Cir. 1978).

In DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), the Court held a motion for return of property seized by the government can be maintained only if the property is in no way tied to a criminal prosecution In esse against the movant and a denial of such a motion is an appealable order. Meier v. Keller, 521 F.2d 548 (9th Cir. 1975); United States v. Hines, 419 F.2d 173 (10th Cir. 1969). The government also concedes that this standard has been adopted by the various circuits in determining their jurisdiction over appeals from denials of pre-indictment motions for the return of seized property.

Let us see how the government resolves the problem of establishing a "criminal prosecution In esse " and the nexus between the property seized and criminal behavior.

As is admitted, the seizure included some items that are not within the purview of the search warrant. One could easily suggest that the memo pad and the debris might have some reasonable relationship to "evidence of the obstruction of justice," or other crimes. Even the cuff links might, by stretching the imagination, have some relevance although the explanation for this item seems a bit feeble at best. Assuming the search for Volpe, the missing witness, was the reason for the seizure, one must contemplate the handyman arriving for work wearing French cuffs and gold cuff links.

The police scanner might have a reasonable relationship, according to the testimony at the hearing in the district court, to the death of one of the "known burglars," and the same might be said of the guns that were seized. What does Not appear to be covered by the warrant or by connection to other crimes is the $275,000 in cash.

Page 1234

Now it is true that keeping that sum in cash in one's home might be considered a casual perhaps even careless approach to money by most people. Even a disinterested observer might be forgiven for believing that Mr. Accardo exhibited the same lack of trust in banks that he exhibited in his attitude toward the police. (It is interesting to note that this sum large for walking-around money even in a wealthy suburb was found After the premises had been subjected to a burglary. While it is idle to speculate, one would have wished for a proof-of-loss statement after the break-in of January, 1978.) Nevertheless, the seizure of this money must be pursuant to some legitimate police activity.

As nearly as the record shows, the government suggests that the money has evidentiary value because it might "be possible evidence of a motive for the burglary of Mr. Accardo's home." (Testimony of Special Agent Shelton.) Assuming the truth of this statement, it nevertheless affords the government no right to maintain custody of the money. To hold that such a seizure and continued possession is lawful would permit the police to seize and hold property of a burglary victim that had Not been taken by the burglars. The absurd result is that any property not stolen can be seized. The fact is, the property seized was taken from the victim, not the burglar. As a temptation factor, it is not subject to seizure.

The government also suggests that the cash might be evidence of "perjury." Again, if this be true, it certainly is evident that the perjury contemplated is not that of either Mr. or Mrs. Accardo. Their silence is almost deafening. Far from lying about any event in issue, the Accardos have maintained a total silence on every phase of the matter. From the record in this case, the government would have difficulty maintaining that either of the Accardos could communicate at all. The fact that someone else may have lied about the Accardo cash does not permit the government to seize and hold it.

The government also maintains that the appellant has not met the requirement of maintaining a motion under Rule 41(e) of the Federal Rules of Criminal Procedure in that he failed to show "lawful possession of the seized items." This argument is patently frivolous. Ownership of the premises where the property was seized and the seizure itself from those premises are surely not contested. Under such a showing, and absent a government showing of unlawful possession, the property cannot be withheld. Property of private citizens simply cannot be seized and held in an effort to compel the possessor to "prove lawful possession."

In sum, we are satisfied that the government is engaged in a criminal investigation of various matters growing out of an alleged burglary of the Accardo residence. We also hold that the appellant may maintain the motion and appeal the denial for the return of property seized under a search warrant, pre-indictment, and the government can successfully resist such a motion by showing that the property seized is tied to a criminal investigation In esse, DiBella, supra, and that there is a nexus between the property seized and criminal behavior, Warden v. Hayden, supra. At least as far as the...

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