Thomas Shea v. James Gabriel, United States Attorney, 520 F.2d 879, 1st Cir. (1975)
Thomas Shea v. James Gabriel, United States Attorney, 520 F.2d 879, 1st Cir. (1975)
2d 879
to the court.3
2 The Government's ongoing two-year investigation would be compromised by
"1.
revealing at this juncture the contents of its very extensive master affidavit for search
warrants (including those directed at Appellant SHEA) since, for example, many
potential witnesses would thereby be in a position to tailor their testimony if so
inclined; and
3 The ongoing Grand Jury investigation into violations of 18 U.S.C. 1955
"2.
extends to persons and events covered in the master affidavit; and
4 In this regard, the Government intended to submit for the Grand Jury's
"3.
consideration the items seized from Mr. SHEA pursuant to warrants."
5
The court also refused to order suppression or return of the property, on the
ground that the "prejudice to plaintiff by delayed return to him of the property
is outweighed by the legitimate and appropriate governmental interest (in)
using the property as evidence before the grand jury."4 This appeal followed.
property.5 In fact, it may be that Shea will not be indicted at all. In these
circumstances we do not see any interest that would be served by finding denial
of the suppression order appealable. On the other hand, if Shea is indicted and
convicted, there will be an adequate chance for appellate review after the
district court imposes sentence. Therefore, insofar as the appeal is from the
denial of the suppression aspect of the motion, we dismiss for lack of
jurisdiction. Accord, Coury v. United States, 426 F.2d 1354, 1355 (6th Cir.
1970); Hill v. United States, 346 F.2d 175 (9th Cir.), cert. denied, 382 U.S.
956, 86 S.Ct. 433, 15 L.Ed.2d 361 (1965); see United States v. Smith, 463 F.2d
710 (10th Cir. 1972); In re Rom, 459 F.2d 15 (3d Cir. 1972).
9
10
It appears logical that a motion is not "solely for return of property" when it
also seeks suppression of the property as evidence. A number of courts have so
held. United States v. Woodson, 490 F.2d 1282, 1283 (9th Cir. 1973); Dudley
v. United States, 427 F.2d 1140, 1141 (5th Cir. 1970); Meister v. United States,
397 F.2d 268, 269 (3d Cir. 1968); Smith v. United States, 377 F.2d 739, 742
(3d Cir. 1967); Parrish v. United States, 376 F.2d 601, 603-04 (4th Cir. 1967)
(Boreman, J., concurring). But other courts have read this language so as to
make appealable that part of the order denying return of property. United States
v. Williams, 459 F.2d 909, 910-11 (6th Cir. 1972); Coury v. United States,
supra at 1355; Gottone v. United States, 345 F.2d 165 (10th Cir.) (by
implication), cert. denied, 382 U.S. 901, 86 S.Ct. 234, 15 L.Ed.2d 155 (1965).
In United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed.2d 85
(1971), the Court indicated why denial of a motion for return is immediately
appealable: "Denial of review in such circumstances would mean that the
Government might indefinitely retain the property without any opportunity for
the movant to assert on appeal his right to possession." Thus if we found no
appellate jurisdiction Shea could apparently remedy this by bringing a separate
motion for return. But to insist on this procedure appears to exalt form over
substance.6
11
13
We quote from the government's brief the account of what was seized:
"Seized from his person were three bundles of money in the amounts of $313,
$93 and $1,050; various slips of paper designating 'winners' and 'losers',
numbers, names and teams, and point spreads; and numerous football tickets.
The items seized from his residence included bundles of money in the amounts
of $44, $246, $15, $100, $1,000, $412, $100, $111, $135, $153, $90, $138,
$131, $150, $27 and $60; a pad designating teams and point spreads; sheets of
lined paper headed with individuals' names; 19 college and professional
football schedules for games ending December 15, 1974, fourteen of which
were photocopies bearing point spreads; a stack of white paper marked with
boxes containing the names of two football teams; stacks of orange football
stubs and green and pink slips with the notation 'Las Bowl'; appointment and
date books bearing numbers under each date; and various pieces of paper
bearing names and numbers. . . . Also seized from his vehicle was an envelope
bearing the initials 'T.S.' and containing two $1 bills and two orange ticket
stubs."
2
The district court hearing was not transcribed. We have this account of what
occurred by virtue of the procedure set forth in Fed.R.App.P. 10(d)
The dismissal of the complaint was "without prejudice to its renewal should the
United States Attorney or the representatives of the Department of Justice fail
to proceed with reasonable dispatch in presenting its case predicated on the
seized property to the grand jury."
A party might also bring two motions at once one for suppression and one for
return. If this changed the result in courts which strictly construe "solely," then
form would again appear to have prevailed over substance
Black's Law Dictionary 894 (4th ed. 1951): "IN ESSE. In being. Actually
existing. Distinguished from in posse, which means 'that which is not, but may
be.' A child before birth is in posse ; after birth, in esse."