In Re Grand Jury, No. 10-3527 (3d Cir. February 16, 2011)
During a grand jury investigation in Scranton, Lackawanna County, Pennsylvania, federal agents obtained a warrant to search Appellant’s home and offices. They seized many documents and made copies of hard drives without disturbing the computers. The agents agreed to provide Appellant with copies of the seized documents.
In the District Court for the Middle District of Pennsylvania, Appellant, who was being investigated for federal-program theft, extortion, fraud, and money laundering, sought the return of all seized evidence and copies along with an order that the government cease inspection of the evidence during the pendency of the motion. He also asked that the warrant affidavit be unsealed. He filed the motion under Federal Rule of Criminal Procedure 41(g):
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
The district court denied Appellant’s motion, and he appealed this decision to the Third Circuit.
The Third Circuit had to answer the preliminary question of whether it had jurisdiction to hear this appeal under 28 U.S.C. § 1291:
The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292 (c) and (d) and 1295 of this title.
The appealability of an order denying a Rule 41(g) motion is governed by Di Bella v. United States.
In Di Bella, the United States Supreme Court established a rule that an order denying a pre-indictment Rule 41(g) motion is not final and appealable if its purpose was to suppress evidence. But, Di Bella created an exception for orders denying motions that are only for the return of property and not connected to a criminal prosecution that actually exists against the movant.
Because of the specific requests made, the Third Circuit concluded that Appellant intended to suppress evidence with his motion. It further found that the district court’s order did not fall within the exception because Appellant sought more than the property’s return, and his motion was in connection with an ongoing grand jury investigation.
Finding that the district court’s order was not appealable, the Third Circuit dismissed the appeal for lack of jurisdiction.