United States v. Premises Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pennsylvania Appeal of Harold Margolis
584 F.2d 1297
3rd Cir.
1978
Check Treatment

*3 During the violation of 18 1955.1 U.S.C. § GIBBONS, and HUNT- Before ROSENN Margolis, Harold search at the home of ER, Judges. Circuit items, $11,975 seized, in among other agents currency.2 OPINION Margolis filed a “Mo- April On of To our tion for Return Goods Seized.” III, HUNTER, Judge: Circuit JAMES any of knowledge, criminal consider the limitations In this we against Margol- sort have been commenced proper- retention of upon is, proceedings have been and no forfeiture a search war- ty legally pursuant seized In the mo- brought against Margolis made a Appellant rant. Harold indicated that he had no ob- including ap- goods, motion for return of jection government’s photographing to the $12,000 seized proximately currency, in making notations of or Investiga- of agents of the Federal Bureau before serial numbers and denominations tion. He contends that Margolis stipulated the cash was returned. vio- continued possession the search purposes of the motion court ruled lates due The district He con- seizure were valid. warrant and retain seized government may tended that the retention insti- a reasonable time before property for his fifth amendment violated re- and denied tuting criminal rights. adopted, the rule agree lief. We with 3 denied May district court on the court should also have believe that the rule in The court followed reasonably retention the motion.3 termined whether the section, provisions part: of this (1976) provides, under the in curred § 18 U.S.C. applicable and not inconsistent conducts, finances, insofar as manages, (a) Whoever provisions. directs, part with Such duties as are supervises, such of an or owns all or any imposed upon illegal gambling the collector of customs or shall be fined not business $20,000 imprisoned person respect than not more to the seizure and more other in merchandise, years, vessels, vehicles, or both. than five forfeiture of baggage laws shall be and under the customs including money, (d) Any property, performed respect for- used to seizures and with may provisions this section use violation of the or intended for feitures of used officers, to the United States. be seized and forfeited such violation of this section seizure, provisions relating designat- All of law agents, persons as or other judicial summary, procedures, Attorney and forfeiture purpose General. ed for that vessels, vehicles, mer- condemnation of and chandise, baggage for violation and sports sched- included 2. The other items seized laws; disposition ves- of such customs ules, paper papers shredder. various and vehicles, merchandise, sels, baggage sale; proceeds the remission from such forfeitures; such a motion to entertain mitigation 3. Jurisdiction of such power supervisory inherent compromise founded on the award of com- of claims and the Attor- respect pensation the district court over the of such to informers ney’s officials apply office and over law enforcement to seizures and forfei- forfeitures shall Import- g., alleged e. been in- within the district. See Go-Bart tures incurred or to have (1st governed by independence Shea An proceeding. criminal 1975), retention order from the commencing suppress some a motion to evi- order indictment, the Consti- proceeding dence, would violate is not sort even an tution if the took “unreasonable ruling is con- order. Such a appealable proportions.” merely step sidered delay was not unreasonable three-month are any rights involved ade- process, and and denied the motion. trial protected subsequent quately v. United DiBella 13, 1977, “Peti- Margolis filed a July On L.Ed.2d or- May tion for Reconsideration” Leasing Gorp. M.G. $11,975. der, requested petition The trial treated the judge *4 States, (1977); v. 530 Meister United 397 light goods renewed motion for return of hand, (3d 1968). 268 On the other F.2d Cir. of the failure of the the return of against Mar- determination of a motion for any proceedings to commence hear- to be intimate- golis evidentiary or the An was not considered property. opinion held. order filed since the ing ly process, was In an and involved in criminal the 22, that September the trial court found the such a motion property rights asserted in was to an investi- ongoing related which will be are often unrelated those Also, that the sort gation. the court found some involved in a criminal trial. Under resulted investigation involved often circumstances, such motions denying orders after search two-year delay one to DiBella immediately appealable. v. are the brought. rule an indictment Under 131-32, States, 369 at 82 supra, U.S. United the dis- previous opinion, announced 654; 402 Ryan, v. U.S. United States S.Ct. the was trict court held that 1580, (1971); 91 29 L.Ed.2d 85 S.Ct. acting reasonably accordingly still Fields, (3d 883 States v. Margolis’ nied motion. The court indicated 1970). whether the question Cir. The that the motion could be at such renewed motion is for the return of delay the time as “inaction suppression it involves the whether also pro- eventually deteriorates to unreasonable examining by evidence to be resolved portions thereby infringes upon “essential be- character” Mar- rights.” movant’s Fifth Amendment States, 221, Cogen 278 U.S. low. v. United golis appeal filed a notice from timely 225,49 118, (1929); 73 L.Ed. 275 Smith S.Ct. July order 13 motion for denying that 739, States, 742 v. F.2d Cir. 377 goods. return States, 1967). See v. United 354 Carroll 394, 1332, 17, 1 U.S. 404 n. S.Ct. II Gabriel, supra, (1957); v. Shea At outset we must address the at Peachtree F.2d jurisdiction as to we have question whether Distributors, (5th 456 F.2d 442 National Cir. The appeal. only to hear basis for States, 1972); supra. Meister jurisdiction parties is that the raised prop denial of the for return hold that the essential charac motion We solely mean motion is Margolis' is a “final decision” within the ter of For of this ing Supreme property. purposes of 28 1291. The U.S.C. § stipulated has of an order movant finality proceeding, Court indicated lawful. prosecution to a criminal the search and seizure were potential nom., ing 344, 1971) (en banc), 354-55, aff'd sub Gelbard v. Co. United (1931); S.Ct. 75 L.Ed. 374 Chapman, Kelley, (1972); F.Supp. Unit Lord L.Ed.2d 179 559 F.2d 402 Cir. Wilson, J.), (D.Mass.1963) (Wyzanski, U.S.App.D.C. ed States v. dism’d, Jury (1st 1964). In re Grand Proceed F.2d 1100 ings, 207-09 n. 15 & “accusatory” stage. Shea v. Ga- only the basis that argued was motion process briel, violated due 520 F.2d at 882. We do supra, continuing hold criminal point decide at what precisely ” bringing any action which “in prosecution esse for becomes argument does not would relate. Such DiBella, hold purposes of germane to a criminal trial relate issues prosecution in this is too bringing of a case might from the which result Margolis’ deprive from motion to remote Margolis has offered to al- of finality. court’s order district government to and oth- photograph low the Smith, Richey 1242-43 value preserve erwise 1975). would To hold otherwise Thus, effect of cash which was seized. review of claims effectively deny appellate would not interfere granted the motion if such raised unreasonable which might any with criminal Margolis. We that the motion below result. believe to be should be considered in substance Ill any pro- independent from future argues Constitution re- limitations on the places was for the finding that motion Our tention of seized Since inquiry. end our return of does not ceedings any kind have been commenced avoiding policy piecemeal appeals po- must his against appellant, we consider *5 to an order interpreted deprive has been innocent sition to be the same as that an goods for the return of denying motion bystander property whose has been seized already it relates to an exist- finality when as in possible for use evidence a criminal The in DiBella ex- ing prosecution. Court plained: under Appellant does a claim not raise Only solely if motion is for the return the and the fourth that the search amendment tied a property way and is no unlawful, that contends seizure were against in esse the prosecution of his prosecutor’s possession the regarded proceedings movant can the currency, violates property, particularly the independent. he posi- On process.4 takes the 131-32, at 660. 82 See 369 U.S. at S.Ct. prop- government tion the must return that at Ryan, supra, States v. U.S. United seizure, than erty “shortly” after rather 533, supra, Shea v. S.Ct. time, as the district court after a reasonable 881-82; United Alex- at government argues the held. He also that ander, 1169, Cir. 428 F.2d if its currency required is return States, If a supra. Smith United fully preserved value evidentiary can be is ceeding pending, required is movant means, photographing other such as goods for to raise motion return recording bills serial numbers and final and to await a order proceeding suggests that if nominations. He further taking appeal. government to retain the bills wishes case, proceedings have been In this themselves, he be a check for their given against or against commenced movant compensation. value other or Indeed, part Margolis’ ar- property. the reason- opposes government The also government is is gument delaying that the court. adopted by the district able-time rule proceed- commencing any unreasonably is position Its is that since that the case ings. testimony The indicated value, being chiefly “investigatory” rather than for its is still in the Jury Proceedings, generally In re Grand purposes of his motion 4. Since banc), 199, 1971) (en rea- 207-09 concedes that the search and seizure were States, sonable, require- nom. v. United case does involve the affd sub Gelbard this not 41, 2357, (1972). 41(e), governing U.S. 92 S.Ct. 33 L.Ed.2d 179 mo- ments of Fed.R.Crim.P. unlawfully property. a court property, of seized ing the retention un- property retain prosecutor government interests of the jury weigh and must subsequent grand end of til the the owner’s against holding until the statute or trial part As a crime has use the suspected rights to on the limitations balance, noted that the court elapsed. to hold permitted not be should permit clearly The amount of unreasonable for an investiga for use in evidence ted to seize bringing other prosecuting time before Hayden, 387 Warden v. tions and trial. at 882. 520 F.2d dispositive action. 1642, 18 L.Ed.2d U.S. 87 S.Ct. in deny- rationale adopted this district court Nevertheless, government may and ruled motion ing appellant’s seize, effect a power by exercising was reasonable. proper by retaining de facto forfeiture the reasonable believe We indefinitely. generally ty seized correctly ap was ness standard in Shea Currency, Coin govern court. proved by 28 L.Ed.2d U.S. proper right of a to hold suggestion on ment’s (1971) (forfeiture must be based lapsed the statute of limitations ty used in connec until finding was impermissible impose an conduct). may many As the cases wrongful tion with concedes, poten on a citizen whose case burden in this the statute of example, For returned once the tial evidence. used as evidence must be begins to run at conspiracy it to which relates limitations on criminal proceedings last overt act before terminated, subject it is then have unless commission conspiracy. Grunewald which shall termination forfeiture other 77 S.Ct. In Lowther timely brought. States v. 1973), the 1 L.Ed.2d 1947), cert. Johnson, holding premise on the court based such a denied, 92 L.Ed. would retention of evidence that continued *6 investigators seize valuable (1948). If taking just compensa a constitute Moore, third belonging to an innocent property In United v. tion. not soon conspiracy re does (S.D.W.Va.1976), party, the court F.Supp. 858 terminate, government’s rule thereafter power govern to supervisory lied on its to held as evidence power, property would allow be government’s subpoena scope amount of time. Such under for an indeterminate possible also noted constitutional tantamount to a forfeiture on retention of would be pinnings to the limitation required by statute insisting procedures courts on without the property seized. Other proceed by after the end of the source explicit have not been as to ings delay in In some instances a reasonable g., limitation. E. United States v. of this bringing prosecution may well be LaFatch, 1977); 565 F.2d limita period as the of the statute of same Wilson, U.S.App.D.C. v. United States however, believe, tions. We do not (1976); In re therefore this will case. We always be the Brenner, powers its court under hold that the district Pardo-Bollard, F.Supp. 473 law enforcement officials supervise to (S.D.N.Y.1964). its Attorney within and the United States prop require the return pointed jurisdiction may to parties in this case have govern as evidence if the solely which con- case only appeals one court of bringing unreasonably delayed placed be ment has might sidered whether limitations Jacobs, Cf. United States prosecution. retention of government’s 1976) (supervisory In proceedings. Shea prior to institution relating grand jury proceedings), Appeals power to supra, the Court of granted, improvidently that, in evaluat- cert. dismissed as indicated the First Circuit charges against movants to after 98 S.Ct. 56 L.Ed.2d 53 determination, making In and use of alcoholic illegal possession the citizen’s carefully balance court should The United beverages had been dismissed. against interest in use of his to permitted it was States claimed that interests in law governmental wide-ranging liquor after the trial to hold the continue enforcement. of future forfei- possibility because of the hearing, the district After the tax assessment. proceedings or federal ture investigations in this case found court these inter- carefully The court reviewed involving Margol- such as that gambling, ests, sufficiently not but found them to is, much as one to two often consumed as retention of justify concrete proceedings are any criminal years The motion was therefore property. by finding supported commenced. This basic Implicit in these cases is the granted. of the decision the evidence. At the time must have proposition that the below, passed since the seven months had property in order to some interest in seized seizures, finding that the and so the court’s York, New retain it. Cf. Heller v. within reasonable prosecutor was still (1973) 37 L.Ed.2d 745 by substantial evidence. supported bounds is picture of motion copy need for (balancing Margolis argues that first burden on against film as evidence step be- taking an additional erred seizure). rights amendment caused delay. examining yond the timeliness anal- required As was the case with urges He the court $11,- retention of reasoning examine whether the that the ysis, we do not believe to the need for reasonably 975 was related to the reten- be confined these cases should government. asserted prior after trial.5 Even tion of trial, to hold decision appellant’s conten agree We with related to the might reasonably item not be again is the case starting point tion. Our For exam- investigation reten or trial. dealing law with the needs of of a after the termination are called to investigators assume that ple, insisted Courts which have trial. robbery. Witnesses the scene of a bank after the on the return of items of evidence bank, indicate that a robber ran out end of a trial have reasoned car of an innocent against parked fell reason longer had a valid the street. then fled down bystander, and retaining the movant’s the car in order may seize Wilson, supra, e.g., Nevertheless, from it. fingerprints lift Moore, su F.2d at prosecutor we do not believe that *7 hand, the other pra, F.Supp. at 860. On itself holding the car as in all cases on insist in continuing where the full jury. The presented to a evidence to be terest, property or such forfeiture of the as property evidentiary the seized value of lien, property need outstanding an tax investigators when might fully preserved be its usefulness as though be returned even The innocent fingerprints. photograph the v. States evidence has ceased. United his auto- in the use of bystander’s interest LaFatch, F.2d at supra, 565 outweigh any clearly mobile would then Wilson, at 1101. v. supra, States in al- prosecution to the incidental benefits Fields, su generally United States the car from which lowing jury the to view Brenner, court had pra. supra, In In re prints were taken. property before it a motion for return of affirming instituting proceedings. 1975), In the denial (1st 5. Shea F.2d 879 goods, question of specifically a motion return of the court of did not address required appeals cir- additional be examined the several whether should surrounding government’s reten- property in the cumstances indicate a need to hold seized secrecy Nevertheless, goods, period of the such as the need for of time before trial. in Id at 882. in court did not limit its concern to against seized quires forfeiture district court’s We hold that the unreasonable brought of the of the reasonableness be property determination should 1970 Ford Margolis’ property have One delay. retention United States v. purposes for (semble); consideration of the included supra, 564 F.2d at 866 Pickup, If being held. which the is Yacht Named Motor One retaining sole government’s interest 1975); 1112,1114 (1st F.2d Mercury, 527 evidence, the is for its court use as Schultz, Lines, Inc. v. Marine would purpose should consider whether this Sarkisan well the alternatives to equally be served Cir.), cert. money sug which were holding the itself 291, 38 denied, 414 Margolis. determination gested by As in its v. One timeliness, be sensitive court should (E.D.Mich. Van, Dodge F.Supp. interests to the need to balance the owner’s 1973 Ford 1976); United States v. One govern complex often and varied LTD., If the F.Supp. (D.Nev.1976). retaining interests evidence for mental Margolis’ justifiable is holding is If the retention un trial. forfeiture, of the only possibility because circumstances, all considering reasonable on the court insist the district should supervi its court a matter of as pro appropriate prompt institution of the return of the sory powers should order the seized Margolis’ we summary In believe that gov- find may course the court Of district be to the district motion must returned Margolis’ property ernmental interests in the first it consider court so Although value. evidentiary addition to decision whether instance strongly pressed has not $11,975 related to reasonably to hold the is point appeal, possibility on for- currency. If it in the the interests claims currency suggests feiture of the itself. If prop- in the government’s only interest possi- subject to being is evidence, the court for its use is forfeiture, permitted be might ble retention might interest should determine if this if no is evidentiary justification even found. methods as well served such alternative Fields, supra; In re Cf. United States v. preserving the value Brenner, purpose supra. If this valid is govern- property by If ballot. court, shown district must interests, as needs ment asserts other such look to the laws to the commence- relating possibility of investigation or the ment of to determine forfeiture actions forfeiture, evaluate the district court should whether the with- holding length whether the retention itself commencing proceedings out reasonable. light of the retention reasonable Wilson, supra, 540 F.2d at those interests.6 gam- 1955(d), 1104. Section the court’s holding Since we rest our forfeitures, incorporates the bling-related Margol- supervisory power, we do not reach to the forfeiture procedures pertaining is’ contention that the actions of the customs laws. violations Nevertheless, we deny him due Those seq. U.S.C. 1602 et sections §§ find that this is a contention. As require proceeding serious forfeiture *8 noted, 1602-1604; of we have at least in the context promptly instituted. Id. §§ proc- forfeiture, that due courts have found Pickup, 1970 Ford 564 States One of 1977). requires prompt F.2d 864 Aside from the ess institution Cir. also those cases statutory provisions, process reasoning re- The of money subject which consider the ad- of the is the of the motion On remand court should passed goods ditional time since its first which has for return of seized. This contention of properly consideration the motion. for con- directed to court the district on sideration remand. The has raised the question Margolis owns whether fact all

1305 authority discipline to Under their attor government’s hold- apply could well Federal neys 41(e) and Rule of the Rules of use at trial. ing property for Procedure, courts may Criminal district or denying The order of the district court suppression illegal der the return or the goods will be va- the motion for return the United ly by States evidence cated, case will be remanded for and the are no Attorney, when there other even further with this proceedings consistent pending. civil opinion. 199, 450 Proceedings, In re F.2d Jury Grand appellee. against Costs taxed banc), (3d 1971) (en sub 207-08 aff’d Cir. States, 41, 408 nom. Gelbard v. United U.S. ROSENN, Judge, concurring. Circuit (1972). 2357, 179 92 33 L.Ed.2d But in S.Ct. by majority I result reached cases concur those cited which however, cannot, join authority, have I them in courts exercised such majority. have suppression been court orders return holding may require on a finding based Government under the return of the seized of a seized the evidence in violation statute supervise “powers district court’s law or the Go-Bart Importing Constitution. and the enforcement officials United States Co., supra (violation of Fourth Amend jurisdiction.” within its I believe Attorney ment); 559 Chapman, court, formulating this standards con- 402, 1977) (dictum, 406 since Cir. crimi cerning goods the retention of and cash already begun; nal had seized by the Government under a valid disregard” looks for “callous constitu warrant, upon not rely should such unde- rights); Jury tional In re Grand Proceed powers. fined ings, supra statute and (violation at 209 recognize I courts federal do have Amendment); Kelley, Fourth’ Lord 223 powers. certain supervisory inherent 684, F.Supp. (D.Mass.1963), appeal 690 Supreme Court, exercise of its in the broad dism’d, 1964), (1st Cir. cert. judicial supervision of criminal powers denied, 961, 650, 379 85 13 U.S. S.Ct. courts, justice in the formulate federal (violation of (1965) Fourth 556 applied rules of to be in criminal evidence Amendment).1 States, prosecutions, 318 McNabb that the seizure of the concedes 608, 322, 341, 87 U.S. L.Ed. 819 S.Ct. If, therefore, lawful. goods cash was (1942), appeals pow and courts of have the the district court is to direct er supervise proceedings jur within their cash, the order goods the basis of must Schiavo, isdiction. that the retention Unit- (en 1, (3d 1974) banc), cert. deprives Margolis ed Attorney denied, S.Ct. U.S. without due L.Ed.2d 688 Paradiso v. United 1973). 482 F.2d I believe issue that the due raised supervisory powers district courts have by appellant be avoided. When cannot subject juris court, discipline attorneys their upon applying remand the district Importing diction. Co. v. court, See Go-Bart standards established the prop- S.Ct. cides whether further retention of reasonable, decide (1931). it must whether L.Ed. Jacobs, moreover, goods 77. The context of 1. An differed order to return the and cash would importantly supervisory power recognized not fit from that of the case now before within Jacobs, prosecutor the court. In had violat- Jacobs the 1976), Department guidelines improvidently granted, dism’d as of Justice’s own cert. ed practice United States At- L.Ed.2d 53 uniform torneys potential Although appellate there the court im within the circuit to advise posed appearing grand jury conduct defendant before the a sanction for the of a Strike prosecutor, target he was a Force that sanction was a direction In *9 case, suppress testimony instant we have no violation rule or the trial court certain law unless before it. 547 F.2d at 776- it be due been under the circumstances without due

deprived

law. Barry

Virginia MELVILLE J.

AMERICAN HOME ASSURANCE

COMPANY, Appellant.

No. 78-1095. Appeals, Court of

Third Circuit.

Argued Sept. 1978.

Decided Oct.