Case Information
*1 ‐ ‐ cv Koskinen UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL . stated term Appeals Second
Circuit, held Thurgood Marshall Courthouse, Foley Square, City New York, th day June, two thousand seventeen. PRESENT: RALPH K WINTER,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x DANIEL CARPENTER
GRIST MILL CAPITAL, LLC,
Plainti ff ‐ Appellees, ‐ cv
JOHN KOSKINEN, COMMISSIONER OF INTERNAL
REVENUE SERVICE,
Defendant Appellant,
DOUGLAS SHULMAN, COMMISSIONER, INTERNAL
REVENUE SERVICE, VICTOR SONG, CHIEF, CRIMINAL
INVESTIGATIONS DIVISION, INTERNAL REVENUE
SERVICE, STEVEN MILLER, COMMISSIONER, INTERNAL REVENUE SERVICE, SHAUN SCHRADER, CRIMINAL
INVESTIGATION DIVISION, INTERNAL REVENUE
SERVICE, UNKNOWN IRS AGENTS, 72, CRIMINAL
INVESTIGATION DIVISION, LANNY BREUER, JOHN DOE, TO JANE DOE, TO
Defendants. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x FOR PLAINTIFF APPELLEE JEFFERY P. NICHOLS (David Slossberg, on DANIEL CARPENTER: brief ), Hurwitz, Sagarin, Slossberg & Knuff,
LLC, Milford, Connecticut. FOR PLAINTIFF APPELLEE JONATHAN EINHORN, New Haven, GRIST MILL CAPITAL, LLC: Connecticut, Norman Pattis, on brief Pattis Law Firm, LLC, New Haven,
Connecticut. APPELLANT UNITED STATES: MARK DETERMAN (Gregory Victor Davis,
Attorney, Tax Division, brief ), for Caroline D. Ciraolo, Principal Deputy Assistant Attorney General, Tax Division, S. Robert Lyons, Acting Chief, Criminal Appeals & Tax Enforcement Policy Section, Deidre M. Daly, Attorney for District Connecticut, counsel. Appeal District District Connecticut (Underhill, J. ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that ma is REMANDED proceedings.
The Government, sued herein as John Koskinen, Commissioner of the Internal Revenue Service, appeals from the order the district court entered June 4, 2015 (the ʺ June 4 Order ʺ ), denying the Government ʹ s Motion to Dismiss and Motion Summary Judgment, ordering the return plaintiffs ‐ appellees Daniel Carpenter Grist Mill Capital, LLC certain documents the destruction certain documents seized pursuant a search warrant 100 Grist Mill Road, Simsbury, Connecticut. Government also appeals order issued by the district court on
February 5, 2016 (the ʺ February 5 Order ʺ ), denying the Government ʹ s Motion Reconsideration the June 4 Order, ʺ without prejudice renewal following the Second Circuit ʹ s ruling in United States v. Ganias , 755 F.3d 125 (2d Cir. 2014), reh ʹ g en banc granted , 791 F.3d 290 (2d Cir. 2015). ʺ same time, district court stayed the June 4 Order ʺ pending order. ʺ In meantime, on December 24, 2015, in a criminal case against Carpenter, Judge Chatigny denied a similar Rule 41(g) motion. See Carpenter No. 3:13 CR (RNC), WL *6 ‐ (D. Conn. December 2015).
There have been number developments since orders. original Ganias panel decision, which relied on its June Order, has since been vacated by en banc Court. Ganias F.3d (2d Cir. 2016). In criminal case, was convicted all counts on *4 June 2016. F. Supp. 3d (D. Conn. 2016). He has not been sentenced. oral argument, the parties ʹ disagreement regarding return of the documents appeared to have narrowed. Government noted that, subject to chain of custody concerns, it objects only to returning documents relevant to the criminal proceedings. Plaintiffs ʹ counsel acknowledged that they do not object to the retention of these documents as long as the criminal proceedings are pending, that plaintiffs currently seek only the return documents not relevant to the criminal proceedings. As for chain custody concerns, the parties suggested oral argument that they may be able to reach agreement to preserve the chain custody.
This case presents difficult issues appellate jurisdiction. We need not, however, resolve these issues, as we remand the district court to consider the changed circumstances discussed above. In its February Order, district court stayed its June Order, that stay remains in place. Should stay be lifted, however, Government may ask this to hear matter immediately. On remand, may wish consider having both civil criminal cases heard by one judge, as it appears there are now conflicting orders place.
Accordingly, we REMAND this ma tt er proceedings consistent with order. This panel will retain jurisdiction over any subsequent appeal pursuant Jacobson F.3d (2d Cir. 1994). restoration jurisdiction will be automatically triggered by le any party *5 seeking review ʹ s actions remand, submi tt ed Clerk within fourteen days ʹ decision. id. Clerk shall reassign appeal panel, without need any party fi le new notice appeal. Clerk shall set expedited brie fi ng schedule submission supplemental le briefs. THE COURT:
Catherine O Hagan Wolfe, Clerk