                                           PRECEDENTIAL


          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                       _____________

                        No. 10-3527
                       _____________

                       In Re: Grand Jury
                        _____________


        On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                District Court No. 3-10-mc-00235
        District Judge: The Honorable A. Richard Caputo

                   Argued January 26, 2011

    Before: McKEE, Chief Judge, and SMITH, Circuit Judges
               and STEARNS, District Judge*


                  (Filed: February 16, 2011 )


*
  The Honorable Richard G. Stearns, United States District Judge
for the District of Massachusetts, sitting by designation.

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                  _____________________

                        OPINION
                  _____________________

SMITH, Circuit Judge.

       The appellant is a target of a grand jury investigation.
In connection with the investigation, federal agents executed
a warrant to search the appellant‘s property and seized
numerous documents. To accommodate the appellant, the
agents agreed to furnish him with copies of all seized
documents. Unsatisfied, the appellant moved for return of the
documents, as well as any copies, on the ground that the
search and seizure violated the Fourth Amendment. The
District Court denied the motion, and this appeal followed.
As explained below, we lack jurisdiction to review the denial
and will dismiss the appeal.

                              I.

       During an investigation by a grand jury sitting in
Scranton, Pennsylvania, federal agents obtained a warrant to
search the home and offices of the appellant. The warrant
affidavit is sealed, but the government has indicated that the
appellant is being investigated for federal-program theft,
extortion, fraud, and money laundering. The warrant was
executed on June 18, 2010; agents seized numerous
documents and made copies of the appellant‘s hard drives
(while leaving the computers undisturbed). To mitigate any

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inconvenience caused by the seizure, the agents agreed to
provide the appellant with copies of the seized documents.

       Unappeased, the appellant filed a motion under
Federal Rule of Criminal Procedure 41(g) in the Middle
District of Pennsylvania.1 The motion challenged the validity
of the search and seizure, and requested (1) that the warrant
affidavit be unsealed, (2) that all seized evidence be returned
to the appellant, (3) that any copies of the evidence be
returned, and (4) that the government be ordered to cease
inspection of the evidence pending a ruling on the motion.
Importantly, the motion did not assert that the government‘s
retention of the evidence was causing the appellant to
experience hardship. It claimed, instead, that the search and
seizure ran afoul of the Fourth Amendment, and that the
government thus had no business using the seized evidence
against the appellant in criminal proceedings.

      The government filed two responses to the motion: one
was a regular response and the other a supplemental ex parte
response. The regular response argued that the appellant‘s
motion was not a motion for the equitable return of property
(which is contemplated by Rule 41(g)), but was, instead, a
premature motion to suppress evidence. The response also
1
   Rule 41(g) (formerly Rule 41(e)) provides that a ―person
aggrieved by an unlawful search and seizure of property or by the
deprivation of property may move for the property‘s return.‖ Fed.
R. Crim. P. 41(g). ―If [the court] grants the motion, [it] must
return the property to the movant, but may impose reasonable
conditions to protect access to the property and its use in later
proceedings.‖ Id.
                                3
defended the search and seizure against constitutional attack,
stressing that they were conducted pursuant to a duly issued
warrant.

       The supplemental ex parte response, to which the
sealed warrant affidavit was appended, explained that the
government had a strong interest in maintaining the warrant
affidavit under seal. According to the government, unsealing
the affidavit would cause the identities of confidential
informants to be revealed, expose individuals and businesses
to public obloquy though charges against them may never be
brought, cause the release of confidential grand jury and tax
information, and ―result in disclosing to [the appellant], prior
to the initiation of charges, the precise areas of inquiry into
which the investigation was looking, thereby facilitating [the
appellant‘s] and other subjects‘ obstruction of the
investigation.‖ Gov‘t Br. at 16.

       By order dated August 17, 2010, the District Court
denied the appellant‘s motion. It concluded that the appellant
was not entitled to return of the seized property or unsealing
of the warrant affidavit. This appeal followed.

                              II.

        The appellant asserts that 28 U.S.C. § 1291 gives this
Court jurisdiction to review the order denying the Rule 41(g)
motion. Section 1291 vests the courts of appeals with
jurisdiction over ―appeals from all final decisions of the
district courts of the United States.‖ Both sides agree that the
question whether the District Court‘s order is final and
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appealable is governed by the Supreme Court‘s decision in Di
Bella v. United States, 369 U.S. 121 (1962). Under Di Bella,
denial of a pre-indictment Rule 41(g) motion is not final and
appealable if the motion was in effect for the suppression of
evidence. See id. at 131–32. ―Such a ruling is considered to
be merely a step in the criminal process, and any rights
involved are adequately protected in subsequent trial
proceedings.‖ United States v. Premises Known as 608
Taylor Ave., 584 F.2d 1297, 1300 (3d Cir. 1978) (citing Di
Bella, 369 U.S. at 121). Di Bella carved out an exception for
orders denying motions that are truly independent of
anticipated criminal proceedings. Notably, however, ―[o]nly
if the motion [1] is solely for return of property and [2] is in
no way tied to a criminal prosecution in esse against the
movant can the proceedings be regarded as independent.‖
369 U.S. at 131–32. Failing to observe these limitations, the
Court explained, would undermine the policies against
piecemeal appellate review and disrupting ongoing criminal
prosecutions that underlie § 1291‘s final-judgment
requirement. See id. at 124, 126–29.

       We have previously had occasion to apply Di Bella in
circumstances similar to those presented here. In In re Grand
Jury Proceedings (FMC Corp.), 604 F.2d 806 (3d Cir. 1979),
for example, a corporation produced documents in response
to a subpoena duces tecum issued by a grand jury. After
handing over the documents, the corporation moved for their
return, alleging that they had been procured through fraud.
See id. at 806–07 & n.1. The District Court denied the
motion, and the corporation appealed. We concluded that the
District Court‘s order was not appealable:
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      In the grand jury context, nongovernment
      appeals of technically nonfinal decisions have
      been closely limited to orders denying motions
      for the return of property. But as we [have]
      observed . . . , the question whether a motion is
      for the return of property or whether it is for the
      suppression       of    evidence,    and      thus
      nonappealable, must be resolved by examining
      the essential character of the proceedings in the
      district court. [Here, i]t is not disputed that
      although the grand jury proceedings were at a
      standstill for a time, they have been resumed,
      and the conduct of [the corporation] is still the
      subject of inquiry. There is obviously the
      possibility of a criminal prosecution against the
      corporation and it cannot be said that the motion
      is in no way tied to a potential indictment. This
      is not an independent proceeding but merely a
      step in the criminal prosecution. Accordingly,
      the appeal will be dismissed for lack of
      jurisdiction.

Id. at 807 (internal citations and quotation marks omitted). In
other words, Di Bella‘s second requirement—that the motion
be unrelated to an existing criminal prosecution against the
movant—was not met because the corporation was the
subject of an ongoing grand jury investigation. See also
United States v. Pantelidis, 335 F.3d 226, 232 (3d Cir. 2003)
(noting that, ―[a]s a general principle, ‗an order denying
return of property would not be final and appealable if the
government were holding the property as evidence in a
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potential criminal prosecution‘‖) (quoting Gov’t of the V.I. v.
Edwards, 903 F.2d 267, 272 (3d Cir. 1990)).

       Our decision in United States v. Furina, 707 F.2d 82
(3d Cir. 1983), is also instructive. There, during a grand jury
investigation, federal agents obtained and executed warrants
to search the appellants‘ residences; the agents seized various
documents for presentation to the grand jury. Claiming that
the search and seizure were invalid, the appellants filed a
motion for return of the documents. The District Court
denied the motion, and an appeal followed.

        We dismissed the appeal. In doing so, we found it
―very clear‖ that the appellants‘ motion sought the
suppression of evidence, not simply the return of property.
Id. at 84. Indeed, the motion had been filed pursuant to what
is now Rule 41(g), and, at the time, granting such a motion
automatically resulted in suppression.2 That the appellants‘
motion had sought not just the return of property but also the
suppression of evidence was ―enough under Di Bella to
require that . . . the appeal be dismissed.‖ Furina, 707 F.2d at
84. We also stated that, ―even though the appellants [we]re
not under arrest or indictment,‖ a prosecution against them
2
  Before 1989, the Rule provided: ―A person aggrieved by an
unlawful search and seizure may move the district court . . . for the
return of the property . . . . If the motion is granted the property
shall be restored and it shall not be admissible in evidence at any
hearing or trial.‖ Furina, 707 F.2d at 82 n.1 (quoting the Rule)
(emphasis added). The automatic-suppression provision was
deleted from the Rule in 1989. See Fed. R. Crim. P. 41 advisory
committee‘s note.
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was nevertheless in esse for purposes of Di Bella, because
they were subjects of an ongoing grand jury investigation. Id.
(citing In re Grand Jury Proceedings, 604 F.2d at 806). We
therefore held that the appellants did ―not satisfy the [second]
requirement of Di Bella that the motion [be] in no way tied to
a criminal prosecution in esse against the[m].‖ Id. at 84.

       Turning now to the case before us, we think it clear
that the order denying the appellant‘s Rule 41(g) motion is
not final and appealable. We arrive at this conclusion for two
independent reasons. First, the motion plainly sought not just
the equitable return of property, but also the suppression of
evidence—i.e., to prevent the government from using the
evidence in criminal proceedings. This is evidenced by the
motion‘s requests for any copies of the seized documents and
for an order directing the government to cease inspecting the
evidence pending a ruling. See In re Search Warrant
(Sealed), 810 F.2d 67, 70 (3d Cir. 1987) (noting that where
the government has retained copies of seized documents and
returned the originals to the movant, a motion for return
implicitly seeks the suppression of evidence, not just the
return of property); Meister v. United States, 397 F.2d 268,
269 (3d Cir. 1968) (same). Similarly, if the appellant really
sought just the return of property—and not also
suppression—then the government‘s offer to furnish him with
copies of the seized evidence should have sufficed (after all,
the appellant has not explained why he needs the originals, as
opposed to copies, of the seized evidence). See Matter of 949
Erie St., 824 F.2d 538, 541 (7th Cir. 1987) (―[W]here the
government has offered to provide copies and the movants
have not even attempted to show that copies are inadequate . .
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. , we cannot find that the motion is directed primarily toward
the return of the seized property [under Di Bella].‖). Thus,
the appellant‘s motion sought both the return of property and
the suppression of evidence; its denial is therefore not
appealable. See Di Bella, 369 U.S. at 131–32 (denial of
motion appealable only when ―motion [wa]s solely for return
of property‖) (emphasis added); Furina, 707 F.2d at 84.

       To be sure, the appellant points out that prior to 1989,
granting a Rule 41(g) motion automatically resulted in
suppression of the restored evidence. See Edwards, 903 F.2d
at 272–73 & nn.1–3 (quoting and discussing the pre-1989
version of the Rule). Because suppression no longer is an
automatic consequence of granting a Rule 41(g) motion, the
appellant reasons that his motion should not be construed as
seeking to suppress evidence. The appellant misapprehends
the effect of the 1989 amendment. While it is true that a Rule
41(g) motion no longer necessarily seeks suppression, this
hardly means that it is impossible for such a motion to seek
suppression. Although the appellant‘s motion could have
sought solely the return of property, in fact it did not: it
sought both the return of property and the suppression of
evidence. Accordingly, the order denying the motion is not
final and appealable under Di Bella.3



3
  Even before 1989, parties could file non-Rule 41(g) motions for
the equitable return of property, see Clifford A. Godiner, Note,
Interlocutory Appeal of Preindictment Suppression Motions Under
Rule 41(e), 84 Mich. L. Rev. 1755, 1768–69 (1986), but appeals of
orders denying such motions would be dismissed if, upon
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        Second, the property was seized in connection with an
ongoing grand jury investigation of which the appellant is a
target. Given the clear connection between the motion and a
criminal prosecution (albeit an incipient one), the appellant
―do[es] not satisfy the [second] requirement of Di Bella that
the motion [be] in no way tied to a criminal prosecution in
esse against [him].‖ Furina, 707 F.2d at 84; see In re Grand
Jury Proceedings, 604 F.2d at 806–07 (criminal prosecution
is in esse when there is an ongoing grand jury investigation);
Smith v. United States, 377 F.2d 739, 742 (3d Cir. 1967)
(same); see also Di Bella, 369 U.S. at 131 (―Presentations
before . . . a grand jury . . . are parts of the federal
prosecutorial system leading to a criminal trial. Orders
granting or denying suppression in the wake of such
proceedings are truly interlocutory, for the criminal trial is
then fairly in train.‖); cf. Premises Known as 608 Taylor Ave.,
584 F.2d at 1300–01 (Di Bella‘s second requirement met
where no criminal proceeding ―of any kind‖ was pending
against the movant at the time the motion for return of
property was filed). We conclude, then, that the order
denying the appellant‘s Rule 41(g) motion is not final and
appealable.4


examination, they sought not just the return of property but also
suppression, see In re Grand Jury Proceedings, 604 F.2d at 806–
07; Premises Known as 608 Taylor Ave., 584 F.2d at 1299–1301.
4
  An attorney representing associates of the appellant appeared at
oral argument, and asserted that property belonging to his clients
had been seized during the search of the appellant‘s offices. The
attorney argued that, even if the order denying the Rule 41(g)
motion is not final and appealable as to the appellant, it is
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        One final point deserves mention. In addition to the
return and suppression of evidence, the appellant‘s motion
requested that the warrant affidavit be unsealed. But
unsealing was requested merely to assist the appellant in
arguing for return and suppression. Thus, the District Court‘s
refusal to unseal the affidavit—like its decision denying the
return and suppression of evidence—is not appealable. See
Furina, 707 F.2d at 84 (―Appellants sought disclosure of the
[sealed warrant] affidavit in order to secure evidence for the
Rule 41[(g)] hearing. The lack of finality which attaches to
the order denying return and suppression necessarily applies
to preliminary matters as well.‖).

                                III.

       For these reasons, we will dismiss the appeal.




appealable as to his clients because—unlike the appellant—they
are not under criminal investigation. Because this contention was
raised for the first time at oral argument, we will not consider it.
See United States v. Voigt, 89 F.3d 1050, 1064 n.4 (3d Cir. 1996)
(an argument brought up for the first time at oral argument is
waived). Of course, nothing prevents the individuals from seeking
relief in the District Court in the first instance.
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