United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 31, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51031
UNITED STATES OF AMERICA,
Respondent-Appellant,
versus
IN RE: SEARCH OF LAW OFFICE, RESIDENCE, AND STORAGE UNIT ALAN
BROWN; LAW OFFICES OF BROWN AND NORTON,
Petitioners-Appellees.
Appeal from the United States District Court
For the Western District of Texas
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The federal government appeals from the district court’s order
issued pursuant to Federal Rule of Criminal Procedure 41(e)
requiring the government to return documents seized from the law
offices and home of Alan Brown, a San Antonio, Texas criminal
defense attorney. The government argues that the district court
erred in concluding under Rule 41(e) that Brown1 should recover his
property and that the government should make no use of it. We find
1
The Rule 41(e) motion was brought by Brown and his law
offices. Collectively we will refer to both as “Brown.”
that Brown showed no irreparable injury warranting the district
court’s pre-indictment suppression of the records, and therefore
vacate the district court’s order and remand with instructions to
dismiss this proceeding.
I.
This case concerns the intertwined investigations of two
individuals, Brown and his long-time office manager, Kelly Houston.
In the mid-1990s federal agents began investigating Brown’s client,
Sammy Naranjo, for drug trafficking. In 1997 this investigation
led agents to suspect that Houston, who was having an affair with
Naranjo, was laundering money for him using Brown’s law firm
accounts. Part of the investigation included wiretaps, and the
agents intercepted telephone conversations between Houston and
Naranjo. On September 17, 1997, agents, including Special Agent
James Maxwell of the Internal Revenue Service, arrived at Brown’s
office to deliver notices of intercept to Brown, on behalf of his
client, Naranjo, and to Houston, to inform them that the government
had intercepted their communications. Brown, Maxwell, and the
other agent present discussed Houston’s affair with Naranjo, and
subsequent to this first meeting Brown, whom agents did not suspect
was involved in Houston’s alleged money laundering, agreed to
cooperate with the agents in their investigation. Around that time
Houston resigned from Brown’s office because he instructed her that
she could not continue working for him as long as she was in a
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relationship with Naranjo. Sometime before Houston left the office
she took with her various financial records detailing the office’s
receipt of monies. Although the Assistant United States Attorney
assigned to the case, Tom McHugh, requested in a letter to Houston
that she return these records, she denied having them.
As part of his cooperation with government agents, Brown
allowed the agents complete access to his office and staff members,
who provided the agents with information on how financial records
were kept at the office. Pursuant to their request he also
conducted, at his own expense, an audit of his office’s financial
records, and in February 1998 Brown testified before the grand jury
as to the investigation into Houston’s activities.
That same month the grand jury indicted Naranjo on various
drug trafficking and money laundering charges. Although Maxwell
and the other agents involved in the investigation of Houston
believed that she should also be indicted, McHugh declined to
prosecute because, at the time, he did not believe the agents had
gathered enough evidence to secure a conviction. He did leave open
the possibility, however, that if the agents gathered the evidence
McHugh believed was lacking he would reconsider prosecution.
Naranjo’s case was set for trial in October 1999. Brown was
listed as a government witness, and Naranjo threatened Brown’s
life. Prior to his trial Naranjo also suggested to the same agents
who had investigated him and Houston that Houston could give them
information about illegal activities being committed by Brown.
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Agents invited Houston to talk with them, and she did. Four days
into his trial, Naranjo pleaded guilty, and Houston requested that,
in return for her cooperation, Naranjo’s sentence be reduced. In
her discussions with the agents Houston stated that, for many
years, Brown had been committing tax evasion by failing to report
significant amounts of income he received in his practice. She
provided the agents with the financial records she had taken from
Brown’s law office before her departure, and alleged that they
proved that he had underreported income noted as received by him in
the records.
In the summer of 2000 agents believed they had enough
information regarding Brown’s tax evasion to search Brown’s office
and home. On August 22, 2000, Agent Maxwell authored a forty-one
page affidavit detailing Houston’s allegations2 and evidence
corroborating that information. On the basis of the affidavit the
magistrate judge issued a warrant authorizing a search of Brown’s
office and home, which agents executed the night of August 22 and
early morning of August 23. Additionally, on August 23 Brown
consented to the agents’ request to search two storage units rented
by his law office. Pursuant to procedures outlined in Maxwell’s
affidavit, a “taint team” composed of agents and attorneys separate
from the team of agents investigating Brown conducted the search to
2
Although in the affidavit Maxwell did not identify Houston
as the confidential informant supplying him with this information,
since that time Houston’s identity as the confidential informant
has been made public.
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protect any potentially privileged information contained in the
records searched. The affidavit also provided that after the
seizure the taint agents would maintain the records, which would be
made available to Brown or his staff. During this time Brown could
identify any potentially privileged records and attempt to resolve
the privilege issues with the taint attorneys. If the issues could
not be resolved they would be submitted to a court for
determination.
Brown refused to participate in this privilege procedure, so
the government determined that the taint attorneys would have to
sift through the records themselves to divide those privileged
items from the nonprivileged ones. After this process had begun
Brown moved for a protective order, arguing that his counsel and
the government had agreed that the taint team would not look
through the records until a court had determined the proper
procedure to be employed to resolve the privilege issues. Brown
also requested that the court order the seized property returned
pursuant to Federal Rule of Criminal Procedure 41(e) on the basis
that it was illegally seized and that it contained privileged
information.
The district court issued a protective order and determined
that Brown’s motion for return of property merited an evidentiary
hearing. Over a year after Brown filed his motion for return of
property, the court held a three-day hearing that focused almost
exclusively on the factual basis for Maxwell’s affidavit in support
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of the search warrant application. Specifically, Brown argued that
Maxwell had omitted and misrepresented several material facts that,
had they been revealed to the magistrate judge at the time he was
considering the application, he would not have issued the search
warrant.
Nine months after the hearing, after prompting by the
government, the district court issued its order granting Brown’s
motion. It concluded that Maxwell had failed to state in the
affidavit that Houston cooperated with government agents to secure
a reduced sentence for her paramour Naranjo, who had threatened
Brown’s life and against whom Brown was set to testify in the
criminal trial, and that Maxwell had also omitted that Houston was
likely cooperating to retaliate against Brown for cooperating with
government agents in the investigation of her alleged money
laundering activities.
The district court additionally determined that Maxwell should
have revealed that he had investigated Houston for money laundering
involving the same financial accounts at issue with regard to
Brown’s tax evasion, and that Maxwell believed she had indeed
committed the offense despite the fact she was never prosecuted for
it. Moreover, the district court found important that Houston had
lied to McHugh about her possession of the firm’s financial
records, and that Maxwell had stated in his affidavit, contrary to
this truth, that he was not aware of any false information Houston
provided to law enforcement officers.
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Finally, the district court concluded that Maxwell had
misrepresented the nature of the receipt books, which Maxwell
averred in the affidavit corroborated Houston’s allegations.
Maxwell had explained that the receipt books contained more
notations regarding receipt of monies than Brown had reported on
his tax returns, but the district court found that the evidence
showed that the receipt books included notations of many different
payments that did not constitute income, but rather court fees,
fees to other attorneys, and restitution amounts.
Based on these findings the district court concluded that
Brown was entitled to all of the seized property and the government
should not be allowed to retain copies or make any use of the
evidence, which effectively suppressed the evidence from
consideration by the grand jury as well as in any post-indictment
proceedings. The government appeals this ruling. Although at the
time of the filing of this appeal Brown had no criminal charges
pending against him, in April of this year the grand jury indicted
Brown on certain tax fraud charges.
II.
Rule 41(e)3 reads as follows:
3
In December 2002 Rule 41(e) was relettered as Rule 41(g).
We will use the version of the rule in existence at the time of the
district court’s order. The only difference between Rule 41(e) as
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(e) Motion to Return Property. 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. 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 12.4
Our earliest opinions on this rule interpreted it broadly as
empowering a district court to entertain on equitable grounds a
pre-indictment motion for return of property if the government
callously disregarded a search warrant victim’s constitutional
rights. Hunsucker v. Phinney concerned a movant’s claim that
government agents illegally searched his apartment and retrieved
materials that the IRS used to recommend a hefty tax assessment
against him.5 Before the IRS could actually make the assessment,
Hunsucker filed suit under the declaratory judgment statute and
Rule 41(e) requesting a return of the seized property and an order
it existed before the most recent amendments and the new Rule 41(g)
is that 41(e) contained as the last sentence in the provision: “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.”
The new Rule 41(g) does not contain such a statement, but Rule
41(h) now provides, “A defendant may move to suppress evidence in
the court where the trial will occur, as Rule 12 provides.”
4
FED. R. CRIM. P. 41(e) (2001).
5
497 F.2d 29, 30-31 (5th Cir. 1974).
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prohibiting its use as evidence against him.6 The district court
dismissed the case.7 Although the basis for the dismissal was
unclear, it appeared to have been grounded in the district court’s
finding that Hunsucker’s attempt to obtain relief was premature.8
In determining whether the dismissal was proper, this court
found that
[a] substantial body of precedent establishes that
federal district courts have power to order the
suppression or return of unlawfully seized property even
though no indictment has been returned and thus no
criminal prosecution is yet in existence. Though firmly
established, this jurisdiction is an exceptional one....
The theory articulated by most of the cases is that
jurisdiction to order suppression or return prior to
indictment exists not by virtue of any statute but rather
derives from the inherent authority of the court over
those who are its officers.9
We cautioned, however, that “it does not automatically follow that
this unique power should be exercised wherever it exists.
Rather[,] such jurisdiction should be exercised with caution and
restraint, and subject to equitable principles.”10
The panel confirmed that Hunsucker’s was not a case warranting
exercise of this “anomalous jurisdiction,” given that Hunsucker had
not shown that the agents exhibited callous disregard for his
6
Id.
7
Id. at 31.
8
Id.
9
Id. at 32 (citations omitted).
10
Id.
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constitutional rights since “the search in issue was conducted
pursuant to a warrant issued in the normal manner.”11 Moreover, he
had an adequate remedy at law for this allegedly unconstitutional
deprivation because, if the IRS did assess the tax, he could bring
a refund suit. Because the government had returned the originals
of the documents to Hunsucker before trial, he could not claim that
he would suffer an “irreparable injury” from waiting to vindicate
his rights “on the theory that some of these materials were
necessary to conduct a legitimate business or were otherwise of
substantial value to” him.12
A year later, in Richey v. Smith, we reconsidered the issue of
pre-indictment suits under Rule 41(e).13 In that case a husband and
wife sued in the district court under Rule 41(e) requesting the
return and suppression of allegedly illegally seized business
records.14 The district court dismissed the suit for lack of
jurisdiction, because neither plaintiff had been indicted, but
noted that the couple could file a motion to suppress in the event
that a criminal prosecution followed.15 Richey explained that
Hunsucker had listed “some of the considerations that should govern
11
Id. at 35.
12
Id.
13
515 F.2d 1239 (5th Cir. 1975).
14
Id. at 1241.
15
Id.
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the decision by the district court whether to exercise this
‘anomalous’ jurisdiction,” including “[f]irst” and “perhaps
foremost,” whether the motion for return of property “alleges that
government agents ... in seizing the property displayed a ‘callous
disregard for the constitutional rights of the taxpayer.’”16 Other
factors a court should consider are “whether the plaintiff has an
individual interest in and need for the material whose return he
seeks,” whether he “would be irreparably injured by denial of the
return of the property,” and whether he has an “adequate remedy at
law for the redress of his grievance.”17 It noted, without deciding
the question, that a motion to suppress may not constitute an
adequate remedy at law for a potential criminal defendant, because
“‘a wrongful indictment is no laughing matter; often it works a
grievous, irreparable injury to the person indicted. The stigma
cannot be easily erased. In the public mind, the blot on a man’s
escutcheon ... is seldom wiped out by a subsequent judgment of not
guilty.’”18
The Richey panel remanded the case to the district court for
a hearing on the plaintiff’s allegations.19 The court also stated
16
Id. (quoting Hunsucker, 497 F.2d at 34) (some internal
quotation marks omitted).
17
Id. (citing Hunsucker, 497 F.2d at 34-35).
18
Id. at 1243 n.10 (quoting In re Fried, 161 F.2d 453, 458-59
(2d Cir. 1947)).
19
Id. at 1244.
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that the district court would have to decide the appropriate relief
to be granted should the plaintiffs prevail, reasoning that “a
motion prior to any suggestion of criminal proceedings, as here, is
more properly considered simply as a suit in equity rather than one
under the Rules of Criminal Procedure,” and “[s]o viewed, return of
the property would not necessarily entail suppression for the
purposes of further court proceedings.”20 As support for this
proposition the court stated that while the taxpayer was entitled
“‘to be as well off as if (the IRS agent) had not unlawfully seized
those papers,’” he was “‘not entitled to be any better off.’”21
In United States v. Calandra, released around the same time as
Richey, the Supreme Court suggested that the equitable powers of a
district court under Rule 41(e) do have certain limitations.22 In
that case a grand jury witness refused to answer grand jury
questions on the ground that they were based on illegally obtained
evidence.23 Federal agents had secured a search warrant of
Calandra’s place of business in connection with their investigation
into possible illegal gambling operations being carried out there.24
20
Id. at 1245.
21
Id. (quoting Lord v. Kelley, 223 F. Supp. 684, 691 (D. Mass.
1963)).
22
414 U.S. 338, 349 n.6 (1974).
23
Id. at 339.
24
Id. at 340.
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After the search Calandra moved under Rule 41(e) for suppression
and return of the seized evidence, contending that the affidavit
supporting the warrant was insufficient and that the search
exceeded the warrant’s scope.25 After a hearing the district court
ordered the evidence suppressed and returned to Calandra and
further ordered that Calandra need not answer any of the grand
jury’s questions based on the suppressed evidence.26 The Sixth
Circuit affirmed, concluding that the district court “had properly
entertained the suppression motion and that the exclusionary rule
may be invoked by a witness before the grand jury to bar
questioning based on evidence obtained in an unlawful search and
seizure.”27
The government petitioned for certiorari on the issue whether,
under the exclusionary rule, Calandra could refuse to answer
questions before the grand jury on the ground that they were based
on illegally obtained evidence, and the Supreme Court granted
certiorari and reversed.28 The Court reasoned that “[t]he grand
jury’s sources of information are widely drawn, and the validity of
an indictment is not affected by the character of the evidence
25
Id. at 341.
26
Id. at 341-42.
27
Id. at 342.
28
Id.
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considered,”29 and added, “the exclusionary rule has never been
interpreted to proscribe the use of illegally seized evidence in
all proceedings or against all persons.”30
Of paramount importance to the Calandra Court was the
exclusionary rule’s potential for hamstringing grand jury
investigations:
It is evident that this extension of the exclusionary
rule would seriously impede the grand jury. Because the
grand jury does not finally adjudicate guilt or
innocence, it has traditionally been allowed to pursue
its investigative and accusatorial functions unimpeded by
the evidentiary and procedural restrictions applicable to
a criminal trial. Permitting witnesses to invoke the
exclusionary rule before a grand jury would precipitate
adjudication of issues hitherto reserved for the trial on
the merits and would delay and disrupt grand jury
proceedings. Suppression hearings would halt the orderly
progress of an investigation and might necessitate
extended litigation of issues only tangentially related
to the grand jury’s primary objective. The probable
result would be protracted interruption of grand jury
proceedings, effectively transforming them into
preliminary trials on the merits. In some cases the
delay might be fatal to the enforcement of the criminal
law.31
The Court rejected the view that the deterrent effect extension of
the exclusionary rule to pre-indictment proceedings would have on
police misconduct overrode these concerns, because “[s]uch an
extension would deter only police [misconduct] consciously directed
29
Id. at 344-45.
30
Id. at 348.
31
Id. at 349 (internal quotation marks, citations, and
footnotes omitted).
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toward the discovery of evidence solely for use in a grand jury
investigation.”32 Any incentive on the part of law enforcement “to
disregard the requirement of the Fourth Amendment solely to obtain
an indictment from a grand jury is substantially negated by the
inadmissibility of the illegally seized evidence in a subsequent
criminal prosecution of the search victim.”33
Calandra argued that the exclusionary rule applied to grand
jury proceedings by way of Rule 41(e), which at that time provided
that “[a] person aggrieved by an unlawful search and seizure may
move the district court ... for the return of the property and to
suppress for the use as evidence anything so obtained.”34 The Court
dismissed Calandra’s reliance on the rule, stating that “Rule 41(e)
... does not constitute a statutory expansion of the exclusionary
rule.”35 The Court concluded, “[i]n the context of a grand jury
proceeding, we believe that the damage to that institution from”
extension of the exclusionary rule “outweighs the benefit of any
possible incremental deterrent effect. Our conclusion necessarily
controls both the evidence seized during the course of an unlawful
search and seizure and any question or evidence derived therefrom
32
Id. at 351.
33
Id.
34
Id. at 348 n.6.
35
Id.
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(the fruits of the unlawful search).”36
Calandra clearly implied that the target of a government
investigation could not use Rule 41(e) – which extends no further
than the limits of the exclusionary rule – to prevent the grand
jury from having access to illegally obtained evidence.37 In 1989
the Advisory Committee to the Federal Rules of Criminal Procedure,
noting Calandra, amended Rule 41(e) to omit language dating from
1944 which stated that evidence shall be suppressed if the court
grants a motion to return property. Its notes on the amendment
explained,
Rule 41(e) is not intended to deny the United States the
use of evidence permitted by the fourth amendment and
federal statutes, even if the evidence might have been
unlawfully seized. United States v. Calandra, 414 U.S.
338, 349 n.6 (197[4]) (“Rule 41(e) does not constitute a
statutory expansion of the exclusionary rule.”).38
The Committee also called into question our suggestion in Hunsucker
that the victim of an unlawful search has a right not only to
return of the original documents but also to all copies, instead
proposing that cases which “have held that the government must
36
Id. at 355.
37
This conclusion is bolstered by Calandra’s statement that
remedies for an illegal search and seizure include a Bivens action
against the officers who conducted the illegal search and a post-
indictment motion for suppression and return of illegally-seized
property. Id. at 354 n.10. It noticeably omitted from mention the
possibility that Rule 41(e) could ever be used by the victim of an
illegal search to suppress evidence pre-indictment.
38
FED. R. CRIM. P. 41(e) (Advisory Committee notes to the 1989
amendments).
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return copies of records where the originals were illegally seized
... are questionable in situations in which the government is
permitted under Supreme Court decisions to use illegally seized
evidence.”39 It instead cautioned that, even in cases of illegally
seized property, “[i]f the United States has a need for the
property in an investigation ... its retention of the property
generally is reasonable.”
Despite these indications that Rule 41(e) cannot block the
government’s presentation of illegally seized evidence to the grand
jury, the Committee notes do leave open the possibility that, in
certain circumstances, equitable considerations may warrant the
government’s return of all seized records.40 However, the case it
cited as an example of such a situation, Paton v. LaPrade,41 is
markedly different from Brown’s. In Paton, the Third Circuit
confronted the issue whether a plaintiff should be allowed to have
39
Id.
40
FED. R. CRIM. P. 41(e) (Advisory Committee notes to the 1989
amendments) (“As amended, Rule 41(e) avoids an all or nothing
approach whereby the government must either return records and make
no copies or keep originals notwithstanding the hardship to their
owner.... In many instances documents and records that are relevant
to ongoing or contemplated investigations and prosecutions may be
returned to their owner as long as the government preserves a copy
for future use. In some circumstances, however, equitable
considerations might justify an order requiring the government to
return or destroy all copies of records that it has seized.”
(emphasis added) (citing Paton v. LaPrade, 524 F.2d 862, 867-69 (3d
Cir. 1975)).
41
524 F.2d at 867-69.
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her FBI record expunged on the basis that it was the result of an
illegal search.42 The plaintiff, a high school student, had sent
a letter to the Socialist Workers Party requesting information for
an assignment in her social studies class.43 The FBI illegally
intercepted the letter and created a file on the student, and added
her name to a name index file with the filing symbol, “SM-SWP,”
which stood for “Subversive Matter-Socialist Workers Party.”44 The
FBI further investigated the student and learned that she had sent
the letter to the SWP for a class assignment and was not herself
involved in subversive activities. However, the FBI did not
destroy the file.45
The student learned of the FBI’s investigation and filed suit
under a statute criminalizing mail theft. She requested
expungement of her FBI file on the ground that it “could endanger
her future educational and employment opportunities,” since Paton
“plan[ned] to study Chinese and then seek governmental
employment.”46 The district court ordered expungement. The Third
Circuit vacated the ruling on the basis that the factual record did
not support the order, since it did not reveal “the scope and form
42
Id.
43
Id. at 865.
44
Id. at 866.
45
Id.
46
Id. at 868.
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of dissemination of the Paton file, its utility to the FBI, and the
pertinent facts necessary for a determination of the legality of
the mail cover.”47
The Advisory Committee apparently believed that in a similar
situation a district court could properly order complete
destruction of the file under Rule 41(e). Importantly, Paton did
not concern an ongoing criminal investigation, but instead a closed
one. The balance of equities in such a situation would more likely
favor complete destruction or return of the evidence than in
circumstances such as Brown’s, where the grand jury investigation
into his activities is ongoing.48
Although the commentary to Rule 41(e) does not absolutely
foreclose use of the rule to suppress evidence going before a grand
jury, we are convinced by both Calandra and the Advisory
Committee’s notes that Rule 41(e) does not permit a district court
to order complete suppression of seized evidence absent, at the
very least, a substantial showing of irreparable harm. Even prior
to the amendments, the Supreme Court recognized that a suppression
motion under Rule 41(e) should not be granted absent proof of such
47
Id. at 869.
48
The government confirmed at oral argument that although the
grand jury has indicted Brown on federal tax charges the grand jury
investigation is still active.
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injury.49 Such a showing is imperative given the concerns Calandra
voiced about impeding a grand jury investigation, which have all
materialized in Brown’s case. The government has been unable to
view any of the seized evidence since entry of the protective order
in October 2000, and the district court did not decide the motion
for return of property until almost two years after Brown filed it.
As the Calandra Court feared would be the probable result if the
exclusionary rule were extended to pre-indictment proceedings, the
result of Brown’s 41(e) motions has been “protracted interruption”
of the grand jury investigation, and a three-day evidentiary
hearing that was “effectively ... [a] preliminary trial[] on the
merits.”50
49
In G. M. Leasing Corp. v. United States, the Supreme Court
seconded our view in Hunsucker that a necessary prerequisite to a
Rule 41(e) suppression remedy was the movant’s showing of
irreparable harm, reasoning:
The suppression issue, as to the books and records,
obviously is premature and may be considered if and when
proceedings arise in which the Government seeks to use
the documents or information obtained from them. And the
irreparable injury required to support a motion to
suppress, under Fed. Rule Crim. Proc. 41(e), on equitable
grounds in advance of any proceedings, has not been
demonstrated.
429 U.S. 338, 359-60 (1977) (emphasis added) (citing Hunsucker v.
Phinney, 497 F.2d 29, 34 (5th Cir. 1974)).
50
Calandra, 414 U.S. at 349-50 (internal quotation marks
omitted). The facts of Brown’s case resemble Calandra’s, in which
almost two and a half years elapsed between the time Calandra was
summoned to appear and testify before the grand jury and the date
on which the Supreme Court issued its decision. Id. at 349 n.7.
The Court reasoned, “[i]f respondent’s testimony was vital to the
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Despite the necessity of proving irreparable harm, Brown has
given short shrift to this component of 41(e). Given that the
government has allowed Brown constant access to the records since
their seizure and has been hospitable to his staff’s copying of any
needed record, Brown does not contend that the government’s
possession of the seized documents does irreparable injury to his
business. Instead, he urges that the government’s alleged
invasions into attorney-client privileged documents justify the
district court’s order. However, as the government pointed out to
the district court, despite his ready access to the evidence, at no
time has Brown made any effort to identify specific privileged
documents in the hands of the government or provide a legal basis
for asserting a particular privilege. Brown has failed to indicate
the amount of privileged documents the government has or the volume
of privileged documents the government taint team allegedly perused
after seizure. Instead, his argument, both in the district court
and in our court, has consisted of vague allegations that the
government viewed extensive amounts of privileged information
during the search of his law office and after the documents’
seizure. Since Brown has failed to offer proof substantiating
these assertions, they do not suffice to prove irreparable injury
warranting the drastic relief granted by the district court.
Brown also argues that he will suffer irreparable harm because
grand jury’s investigation ... it is possible that this particular
investigation has been completely frustrated.” Id.
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of the reputational damage he would suffer from being indicted.
After the government filed the appeal, the grand jury did indict
Brown on federal tax charges without the benefit of the evidence at
issue. We will nonetheless address Brown’s argument because the
potential exists that the grand jury could yet rely on the seized
evidence to indict Brown on additional charges. In Richey we
cautioned that “‘a wrongful indictment is no laughing matter; often
it works a grievous, irreparable injury to the person indicted.’”51
At the same time, the Ninth Circuit more recently observed, “if the
mere threat of prosecution were allowed to constitute irreparable
harm [for purposes of Rule 41(e)], every potential defendant could
point to the same harm and invoke the equitable powers of the
district court .... [T]he district court’s exercise of its
equitable jurisdiction would not be extraordinary, but instead
quite ordinary.”52 The 1989 amendments to Rule 41(e) and the
Advisory Committee’s notes on those amendments encourage courts to
focus on the harmful effects the loss of the property wreaks on the
movant.53 Taking that nudge, we conclude that the irreparable harm
51
Richey v. Smith, 515 F.2d 1243 n.10 (quoting In re Fried,
161 F.2d 453, 458-59 (2d Cir. 1947)).
52
Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993).
53
This is reflected in the fact that subsequent to the 1989
amendments the rule allows a victim of even a lawful search and
seizure to move for the return of property. See FED. R. CRIM. P.
41(e) (2001). Moreover, the commentary to the amendments emphasize
that courts should balance “law enforcement interests” in the
property with the movant’s possessory interest in the property and
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which Brown must have proven to prevail in the Rule 41(e)
proceeding must have focused on the injury to Brown from loss of
the property, not simply harm from the grand jury’s reliance on the
illegally seized evidence in indicting him – Calandra allows that.
III.
Brown has not demonstrated the harm necessary to support the
district court’s order requiring return and complete suppression of
the evidence. We VACATE the district court’s order and REMAND with
instructions to the district court to dismiss this civil
proceeding. We express no opinion on any motion to suppress Brown
may file in his now pending criminal case.54
VACATED and REMANDED.
the “hardship” to the property owner from loss of the property.
Id. (Advisory Committee notes to the 1989 amendments).
54
We do not pass upon Brown’s allegations that the government
possesses potentially privileged information. We leave those to
the district court in which the criminal proceeding is pending.
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