UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-20522
SEALED APPELLANT 1 AND SEALED APPELLANT 2,
Plaintiffs-Appellants,
VERSUS
SEALED APPELLEE,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
January 10, 2000
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
DUHÉ, Circuit Judge:
Appellants challenge the district court's denial of their
joint motion for return of seized items under Federal Rule of
Criminal Procedure 41(e) and for a pre-indictment hearing to set
aside a search warrant under Franks v. Delaware, 438 U.S. 154, 98
S.Ct. 2674, 57 L.Ed.2d 667 (1978). We dismiss each claim for lack
of subject matter jurisdiction.
BACKGROUND
Appellants are the subjects of an ongoing grand jury
investigation in the Northern District of Oklahoma. Pursuant to a
search warrant issued in the Southern District of Texas, Appellees
searched Appellants' offices in Houston, Texas and seized one box
of records and computer files. Appellees provided copies of all of
the seized items to the Appellants. Appellants filed a motion in
the Southern District of Texas requesting that Appellees return the
seized documents and that the court hold a Franks hearing to
determine whether the search warrant was valid. The district court
denied the motion. Appellants appealed.
DISCUSSION
I. RULE 41(e)
Federal Rule of Criminal Procedure 41(e) provides that:
A person aggrieved by an unlawful search and
seizure or by the deprivation of property may
move the district court for the district in
which the property was seized for the return
of the property on the ground that such person
is entitled to lawful possession of the
property. The court shall receive evidence on
any issue of fact necessary to the decision of
the motion. If the motion is granted, the
property shall be returned to the movant,
although reasonable conditions may be imposed
to protect access and use of the property in
subsequent proceedings. If a motion for
return of property is made or comes on for
hearing in the district of trial after an
indictment or information is filed, it shall
be treated also as a motion to suppress under
Rule 12.
FED. R. CRIM. P. 41(e). A party may appeal a district court's denial
of a Rule 41(e) motion as a final order under 28 U.S.C. § 12911
only if “'the motion is solely for the return of property and is in
no way tied to a criminal prosecution in esse against the movant.'”
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Although Appellants' Brief indicated that we have
jurisdiction over their appeal pursuant to 28 U.S.C. § 1292(a)
pertaining to certain interlocutory orders, Appellants argued in
both their Reply Brief and at oral argument that this was a
typographical error and that our jurisdiction is proper under 28
U.S.C. § 1291. Accordingly, they alleged that both the denial of
a Rule 41(e) motion and the denial of a motion for a Franks hearing
are immediately appealable final orders.
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In re Grand Jury Proceedings (“Uresti”), 724 F.2d 1157, 1159 (5th
Cir. 1984) quoting DiBella v. United States, 369 U.S. 121, 131-32,
82 S.Ct. 654, 7 L.Ed.2d 614 (1962). We have “interpreted DiBella
broadly, holding that only if the [Rule 41(e)] motion is 'a
collateral attempt to retrieve property and not an effort to
suppress evidence in related criminal proceedings is it
appealable.'” Simons v. United States, 592 F.2d 251, 252 (5th Cir.
1979) (per curiam) quoting United States v. Glassman, 533 F.2d 262,
263 (5th Cir. 1976).
As we stated in Uresti “[t]he relevant focal point is whether
or not the motion was made primarily to withhold evidence from the
anticipated grand jury hearings and, therefore, not made 'solely
for the return of property.'” Uresti, 724 F.2d at 1159. The trial
court found and we agree that Appellants' motion is primarily
intended to withhold evidence from the Oklahoma grand jury. Not
only did Appellants indicate to the trial court that they were
seeking suppression, but also they failed to demonstrate a business
need for return of the property as Appellees provided Appellants
with copies of all of the seized items. Finally, the fact that
Appellants are simultaneously seeking a suppression remedy under
Franks strongly suggests that this motion is not intended solely or
primarily for the mere return of property. See Franks, 438 U.S. at
156 (holding that the Fourth Amendment remedy sought is
suppression).
This is a suppression case. We agree with the district court
that Appellants' protestations to the contrary are flimsy at best,
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disingenuous at worst. Accordingly, we dismiss Appellants' appeal
of the denial of their Rule 41(e) motion for lack of subject matter
jurisdiction.
II. Franks Hearing
Relying on the Supreme Court's decision in G.M. Leasing Corp.
v. United States, 429 U.S. 338, 97 S. Ct. 619, 50 L.Ed.2d 530
(1977) the district court ruled that Appellants were not entitled
to a Franks hearing since a Franks hearing is premature when there
is no indictment or criminal case pending against the movant. We
do not reach the merits of this contention as we lack subject
matter jurisdiction over Appellants' appeal.
Except in rare circumstances not applicable here, our
jurisdiction is limited to final decisions of the district court.
28 U.S.C. § 1291. For purposes of Section 1291, a decision is
final only if it “'ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.'” Cunningham
v. Hamilton County, U.S. , 119 S.Ct. 1915, 1920, 144 L.Ed.2d
184 (1999) quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22,
108 S.Ct. 1945, 100 L.Ed.2d 517 (1988). The finality requirement
militates against the encouragement of piecemeal appellate review
of district court decisions that do not terminate the litigation.
See United States v. Hollywood Motor Car Co., 458 U.S. 263, 265,
102 S.Ct. 3081, 73 L.Ed.2d 754 (1982). We have noted that the
finality requirement is particularly important in the context of
criminal law. See In Re Grand Jury Proceeding, 190 F.3d 375, 380
(5th Cir. 1999). It is no less important in the pre-indictment
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context of a grand jury proceeding. See id. quoting Cobbledick v.
United States, 309 U.S. 323, 327-28, 60 S.Ct. 540, 84 L.Ed. 783
(1940).
Appellants point to no authority suggesting that the denial of
a pre-indictment Franks hearing is a final decision. Moreover,
the Supreme Court has never even applied the collateral order
exception to the finality rule in a pre-indictment setting. See
id. at 383-84. We are not prepared to deviate from this course.
We will not permit Appellants to obstruct the orderly progress of
an ongoing grand jury proceeding by obtaining intermediate review
of the denial of a pre-indictment Franks hearing. As this is not
a final decision under 28 U.S.C. § 1291, we dismiss Appellants'
appeal for lack of subject matter jurisdiction.
CONCLUSION
For the reasons stated above we DISMISS both of Appellants'
claims for lack of subject matter jurisdiction.
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