CHURCH OF SCIENTOLOGY OF CALIFORNIA, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.
United States Court of Appeals,
Feb. 22, 1979.
A religious organization appealed from a judgment of the United States
District Court for the Central District of California, Malcolm M. Lucas, J.,
denying its application for return of property seized under certain search
warrants and for suppression of the evidence seized. The Court of Appeals,
Duniway, Circuit Judge, held that the judgment appealed from was interlocutory
and not appealable.
Where religious organization, in its petition for return of property seized
under search warrants and motion for suppression of evidence thus seized, did
not seek only return of such property but also sought suppression of evidence
in grand jury, extradition and other criminal proceedings, and where
association's actions were also taken on behalf of employees who might not have
standing to seek suppression, judgment denying relief was interlocutory and not
appealable. Fed.Rules Crim.Proc. rule 41(e), 18 U.S.C.A.; 18
U.S.C.A. ss 371, 641, 1503; U.S.C.A.Const. Amend. 4.
*533 Donald M. Re (argued), Los Angeles, Cal., Leonard B. Boudin (argued),
Rabinowitz, Boudin & Standard, New York City, for petitioner-appellant.
Raymond Banoun, Asst. U. S. Atty. (argued), Washington, D. C., for respondent-
Appeal from the United States District Court for the Central District of
Before DUNIWAY and CHOY, Circuit Judges, and SOLOMON,[FN*] District Judge.
FN* The Honorable Gus J. Solomon, Senior United States District Judge for
the District of Oregon, sitting by designation.
DUNIWAY, Circuit Judge:
The Church of Scientology of California appeals from a judgment denying its
application under Rule 41(e), F.R.Crim.P., for the return of property seized
under certain search warrants and for the suppression of the evidence seized.
We conclude that we do not have jurisdiction, and dismiss the appeal.
On July 7, 1977, two search warrants were obtained authorizing search of
certain offices of the Church, located in two buildings that it owns in Los
Angeles. A similar warrant was obtained for a search of part of a building
owned by the Founding Church of Scientology in Washington, D.C. The
affidavits in support of the warrants were substantially identical, and so were
the warrants, except for descriptions of the premises to be searched. There
was a separate warrant for each place to be searched. The warrants were
executed simultaneously at 9:00 a. m. Washington time, and at 6:00 a. m. Los
Angeles time. Many files were examined at each place, in an effort to find the
papers listed in 161 separate paragraphs of the warrants, and in paragraph 162
of each, which reads:
Any and all fruits, instrumentalities, and evidence (at this time unknown) of
the crimes of conspiracy, obstruction of justice and theft of government
property in violation of 18 U.S.Code ss 371, 1503 and 641 of which
facts recited in the accompanying affidavit make out.
The Church asserts that more than 20,000 documents were seized. Motions to
recover the seized documents were filed on July 12, *534 1977, in the
District Court for the Central District of California, and on July 15, 1977, in
the District Court for the District of Columbia. In the District of Columbia,
the District Court granted the Church's motion. The Court of Appeals
reversed. See In re Search Warrant dated July 4, 1977, D.D.C., 1977, 436
F.Supp. 689; Id., 1977, 187 U.S.App.D.C. 297, 572 F.2d 321, Cert. denied,
sub nom. Founding Church of Scientology v. United States, 435 U.S. 925, 98
S.Ct. 1491, 55 L.Ed.2d 519 (1978).
Throughout the proceedings in the District Court in the case at bar, the
Church has made it clear that the principal reason for its motion has been and
is to prevent the use of any of the seized papers for the purpose of obtaining
indictments against either the Church or its officials or employees. A grand
jury in the District of Columbia had been considering the offenses mentioned in
the affidavits supporting the search warrants conspiracy to steal government
property, conspiracy to obstruct justice, theft of government property, and
obstruction of justice. Many of the seized documents have been presented to
that grand jury, both before and during the proceedings in this case. Since
this case began, and on August 15, 1978, the District of Columbia grand jury
has indicted 11 persons, at least some of them officials or employees of the
Church. So far as we are advised, however, the Church has not been indicted.
Under orders of the District Court, the government has supplied the Church
with two sets of copies of all documents seized, except for certain ones that,
according to the government, are its property and are of a sensitive or
Although the matter is not free from doubt, we conclude that the principles
applied in DiBella v. United States, 1963, 369 U.S. 121, 82 S.Ct. 654, 7
L.Ed.2d 614, require that the appeal be dismissed. There, two persons were
involved. One, DiBella, had been arrested under a warrant, and he was
arraigned and released on bail. Some evidence was seized when he was
arrested. He moved to suppress the seized evidence. While the motion was
pending, he was indicted. The motion to suppress was denied, and he appealed.
The other person, Koenig, had been arrested in Florida on the basis of a
complaint charging bank robbery in Ohio. He filed a proceeding in the federal
court in Florida, to suppress seized property, while removal proceedings were
pending. Meanwhile, Koenig had been indicted in Ohio. Thereafter, the Florida
District Court granted suppression but denied return of the property. Koenig
appealed from the denial of his motion for return of his property. The Supreme
Court held that neither order was appealable.
The Court's holding is stated as follows:
We hold, accordingly, that the mere circumstance of a pre-indictment motion
does not transmute the ensuing evidentiary ruling into an independent
proceeding begetting finality even for purposes of appealability.
Presentations before a United States Commissioner (citation omitted) as well as
before a grand jury (citation omitted) 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. When at the time of ruling there is outstanding a
complaint, or a detention or release on bail following arrest, or an
arraignment, information, or indictment in each such case the order on a
suppression motion must be treated as "but a step in the criminal case
preliminary to the trial thereof." (Citation omitted.) Only if the motion is
solely for return of property and is in no way tied to a criminal prosecution
in esse against the movant can the proceedings be regarded as independent.
Id. at 131-32, 82 S.Ct. at 660 (emphasis added).
The Court also disposed of another argument that could be made for
appealability in this case, that this case was decided by a District Court in
California, where the seizure occurred, while the criminal proceeding is in the
District of Columbia.
*535 An alternative ground for appealability in the Koenig case, likewise
culled from dicta in some of our decisions, would assign independence to the
suppression order because rendered in a different district from that of
trial. Id. at 132, 82 S.Ct. at 661.
Rule 41(e), of course, specifically provides for making of the motion in
the district of seizure. On a summary hearing, however, the ruling there is
likely always to be tentative. We think it accords most satisfactorily with
sound administration of the Rules to treat such rulings as interlocutory.
Id. at 132-33, 82 S.Ct. at 661.
We recognize that DiBella is not precisely in point. While the grand jury had
been investigating the Church, there has been no complaint, arraignment,
information or indictment against it, nor any arrest. In DiBella there was
arrest, arraignment, and indictment; in Koenig there was a complaint, an
arrest, and an indictment.
Later cases, however, carry the DiBella principle a little farther. In
Application of United States, 5 Cir. 1970, 427 F.2d 1140, this was the
court's holding, concerning motions to suppress filed before any indictments
2. The appellants' motions in the court below included a demand for the
return of property, but the Court in DiBella held that "(o)nly if the motion
is solely for return of property And is in no way tied to a criminal
prosecution in esse against the movant can the proceedings be regarded as
independent." (Emphasis supplied.) 369 U.S. at 131, 132, 82 S.Ct. at 660.
As regards the appellants Dudley, the three Sklaroffs, Blott and Richmond, who
are now under indictment for violations of Title 18, U.S.C., their motion to
suppress is an integral part of criminal proceedings In esse the denial of
which is nonappealable at this time. In a like manner, the motion to suppress
of appellants Rogers, Wittell and Green is nonappealable for the motion is not
solely for the return of property, in conformity to the DiBella rule, but
primarily seeks suppression of evidence from grand juries in criminal
proceedings. DiBella v. United States, supra at 131, 132, 82 S.Ct. at 660,
Subsequent language in the opinion can be read to indicate that the last three
persons mentioned were also indicted. However, in United States v.
Glassman, 5 Cir., 1976, 533 F.2d 262, the court tells us that this was not so.
The order (of the district court) denying this motion was dated September 12,
1975; appellant was not indicted until November 13, 1975, and apparently was
never detained. So according to the literal language of DiBella there was no
criminal prosecution In esse at the time this appeal was brought. But in
Application of United States . . . three of the appellants were not indicted
by the grand jury, and yet the court found that their Rule 41(e) motion was
made primarily to suppress evidence from the anticipated grand jury hearings
and therefore was not made "solely for return of property" as DiBella
requires. . . . Id. at 263.
Both Glassman and Application of United States, and especially the latter,
support dismissal of the appeal that is before us.
Our decision in Meier v. Keller, 9 Cir., 1975, 521 F.2d 548, 556, Cert.
denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976), is also
The denial of a preindictment motion or comparable relief is an interlocutory
nonappealable order unless "the motion is solely for return of property and is
in no way tied to a criminal prosecution In esse against the movant."
DiBella . . . Meier's appeal meets neither criterion for appealability. His
complaint sought suppression as well as return. . . . (T)here was already a
criminal prosecution In esse because presentment had already been made to the
Nevada grand jury at the time the complaint (for Rule 41(e) relief) was
filed (in the Central District of California). Thus, the appeal should be
dismissed for want of jurisdiction in this court.
*536 In Parrish v. United States, 4 Cir., 1967, 376 F.2d 601, the
plaintiffs sought, under Rule 41(e) return of records obtained from them by
Internal Revenue agents, allegedly by fraud, and their suppression as
evidence. Relief was denied, and they appealed. At that time, so far as
appears, there was no indictment and no other criminal proceeding pending (p.
602). Later, they were indicted. On the authority of DiBella, supra, the
appeal was dismissed. Judge Boreman would have gone further and held the order
not appealable even if there had been no indictment (pp. 603-04).
In Smith v. United States, 3 Cir., 1967, 377 F.2d 739, Smith and his wife
petitioned for an injunction prohibiting the presentation of certain evidence
to a grand jury, prohibiting its use in prosecuting the petitioners, and
requiring return of the evidence. The petitioning husband and wife had
produced the records relating to their income at the request of the Internal
Revenue Service. When their action was filed, they had not been indicted.
While their petition was under submission, they were indicted for income tax
evasion. Nine days later, their petition was denied. The court held that the
denial was not appealable, citing DiBella, supra, despite the fact that the
petitioners had not been indicted when they filed their petition. The
rationale was that the petition was not solely for the return of property; it
sought to enjoin use of the evidence looking toward prosecution; it was tied to
an incipient criminal proceeding (p. 742).
Austin v. United States, 4 Cir., 1962, 353 F.2d 512, is similar to Smith
v. United States, supra, and held, on the authority of DiBella, supra, that
an order denying a petition to have suppressed, in advance of indictment,
documents that petitioner claimed the I.R.S. had obtained from her by fraud
(see Austin v. United States, 4 Cir., 1961, 297 F.2d 356), was not
Our decision in Goodman v. United States, 9 Cir., 1966, 369 F.2d 166, is
different. There, as we said, "there is, and has been, no criminal case
pending in any stage." (p. 168.) Not so in the case at bar.
In Cobbledick v. United States, 1940, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed.
783, the Court held that an order denying a motion to quash a subpoena duces
tecum to appear and produce documents before a grand jury is not appealable.
Part of the rationale was that it would be undesirable to permit a witness, by
appealing, to halt an ongoing criminal proceeding. Thus, he cannot appeal,
even though he could not appeal from the final decision in the criminal case
because he is not a party to it (p. 326, 60 S.Ct. 540). See also
Alexander v. United States, 1906, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686.
United States v. Ryan, 1971, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85, is
similar. As Mr. Justice Brennan said:
Only in the limited class of cases where denial of immediate review would
render impossible any review whatsoever of an individual's claims have we
allowed exceptions to this principle. We have thus indicated that review is
available immediately of a denial of a motion for the return of seized
property, where there is no criminal prosecution pending against the movant.
See DiBella v. United States, supra, (369 U.S.) at 131-132, 82 S.Ct. 654.
Denial of review in such circumstances would mean that the Government might
indefinitely retain the property without any opportunity for the movant to
assert on appeal his right to possession.
The principle that runs through all of these authorities is that an ongoing
criminal proceeding is not to be interrupted by an appeal from an order denying
suppression of evidence that may be used in that proceeding. This is such a
case. There was, and so far as the record shows there is, an ongoing
proceeding before at least one grand jury, in the District of Columbia. The
parties tell us that there is, or was, another proceeding before a Federal
grand jury in New York. There is also a proceeding pending in Great Britain to
extradite two of the persons indicted by the District of Columbia grand jury,
and some of the seized papers are being used in that proceeding.
*537 The petition or motion here did not and does not seek only the return
of the property. It expressly seeks suppression of evidence, and is avowedly
aimed at suppressing evidence in grand jury, extradition, and other criminal
Moreover, suppression in this case is sought by the Church on behalf of its
employees as well as on its own behalf. Some or all of those employees may not
have standing to seek suppression. Suppression at the behest of the Church
would be an abuse of Rule 41(e), and is an additional reason to deny
appealability. Similarly, suppression of evidence that is to be presented to
the grand jury is sought, although the government would have the right, under
the decision in United States v. Calandra, 1974, 414 U.S. 338, 94 S.Ct. 613,
38 L.Ed.2d 561, to use the evidence before the grand jury as the basis of
questions to a witness, even though the evidence may have been obtained in
violation of the Fourth Amendment. Zurcher v. Stanford Daily, 1978, 436
U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525, holds that, upon a proper showing of
probable cause, a warrant may issue authorizing a search of the premises of an
innocent third party for evidence of crime. Usually, the criminal would have
no standing to suppress such evidence. Yet, if a denial of a motion by the
third party for return of the evidence and to suppress it were appealable,
presentation of the case against the criminal to a grand jury could be delayed
for long periods of time. Surely, if the evidence can be obtained, it can also
be retained during the progress of the criminal proceeding. Yet it is
retention that the Church seeks to terminate here.
Our decision that the order appealed from is not appealable is not free from
doubt, for the reasons stated by Mr. Justice Brennan in United States v.
Ryan, supra. There must, at some time, be a remedy available to the Church for
the return of its property, if it has been unlawfully taken. But the present
appeal is not that remedy. We decide nothing more.