16‐1036‐cv
Carpenter v. Koskinen
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 29th day of June, two thousand seventeen.
PRESENT: RALPH K WINTER,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges,
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
DANIEL CARPENTER and
GRIST MILL CAPITAL, LLC,
Plaintiffs‐Appellees,
v. 16‐1036‐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,
1 TO 72, JANE DOE, 1 TO 72,
Defendants.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFF‐APPELLEE JEFFERY P. NICHOLS (David Slossberg, on
DANIEL CARPENTER: the brief), Hurwitz, Sagarin, Slossberg & Knuff,
LLC, Milford, Connecticut.
FOR PLAINTIFF‐APPELLEE JONATHAN EINHORN, New Haven,
GRIST MILL CAPITAL, LLC: Connecticut, and Norman Pattis, on the brief,
The Pattis Law Firm, LLC, New Haven,
Connecticut.
FOR APPELLANT UNITED STATES: MARK DETERMAN (Gregory Victor Davis,
Attorney, Tax Division, on the brief), for
Caroline D. Ciraolo, Principal Deputy
Assistant Attorney General, Tax Division, and
S. Robert Lyons, Acting Chief, Criminal
Appeals & Tax Enforcement Policy Section, and
Deidre M. Daly, United States Attorney for the
District of Connecticut, of counsel.
Appeal from the United States District Court for the District of
Connecticut (Underhill, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that this matter is REMANDED to the district court for
further proceedings.
‐ 2 ‐
The Government, sued herein as John Koskinen, Commissioner of the
Internal Revenue Service, appeals from the order of the district court entered June 4,
2015 (the ʺJune 4 Orderʺ), denying the Governmentʹs Motion to Dismiss and Motion for
Summary Judgment, and ordering the return to plaintiffs‐appellees Daniel Carpenter
and Grist Mill Capital, LLC of certain documents and the destruction of certain
documents seized pursuant to a search warrant from 100 Grist Mill Road, Simsbury,
Connecticut.
The Government also appeals an order issued by the district court on
February 5, 2016 (the ʺFebruary 5 Orderʺ), denying the Governmentʹs Motion for
Reconsideration of the June 4 Order, ʺwithout prejudice to renewal following the
Second Circuitʹs ruling in United States v. Ganias, 755 F.3d 125 (2d Cir. 2014), rehʹg en
banc granted, 791 F.3d 290 (2d Cir. 2015).ʺ At the same time, the district court stayed the
June 4 Order ʺpending further order.ʺ In the meantime, on December 24, 2015, in a
criminal case against Carpenter, Judge Chatigny denied a similar Rule 41(g) motion.
See United States v. Carpenter, No. 3:13‐CR‐226 (RNC), 2015 WL 9461496, at *6‐7 (D.
Conn. December 24, 2015).
There have been a number of developments since the district courtʹs
orders. The original Ganias panel decision, which the district court relied on in its June
4 Order, has since been vacated by the en banc Court. See United States v. Ganias, 824
F.3d 199 (2d Cir. 2016). In the criminal case, Carpenter was convicted on all counts on
‐ 3 ‐
June 6, 2016. See United States v. Carpenter, 190 F. Supp. 3d 260 (D. Conn. 2016). He has
not been sentenced. At oral argument, the partiesʹ disagreement regarding return of the
documents appeared to have narrowed. The Government noted that, subject to chain of
custody concerns, it objects only to returning documents relevant to the criminal
proceedings. Plaintiffsʹ counsel acknowledged that they do not object to the retention of
these documents as long as the criminal proceedings are pending, and that plaintiffs
currently seek only the return of documents not relevant to the criminal proceedings.
As for chain of custody concerns, the parties suggested at oral argument that they may
be able to reach an agreement to preserve the chain of custody.
This case presents difficult issues of appellate jurisdiction. We need not,
however, resolve these issues, as we remand for the district court to consider the
changed circumstances discussed above. In its February 5 Order, the district court
stayed its June 4 Order, and that stay remains in place. Should the stay be lifted,
however, the Government may ask this Court to hear the matter immediately. On
remand, the district court may wish to consider having both the civil and criminal cases
heard by one judge, as it appears there are now conflicting orders in place.
Accordingly, we REMAND this matter to the district court for further
proceedings consistent with this order. This panel will retain jurisdiction over any
subsequent appeal pursuant to United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).
The restoration of jurisdiction will be automatically triggered by a letter from any party
‐ 4 ‐
seeking review of the district courtʹs actions on remand, submitted to the Clerk of the
Court within fourteen days of the district courtʹs decision. See id. The Clerk shall
reassign the appeal to this panel, without need for any party to file a new notice of
appeal. The Clerk shall set an expedited briefing schedule for the submission of
supplemental letter briefs.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
‐ 5 ‐