D.C.Cir.: Rule 41(g) can’t be used for strategic gain for possible trial

A Rule 41(g) motion for return of property that was really sought to disclose what the grand jury might be looking at. “The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial.” Here it was. Movant’s preoccupation with disclosure v. return was evident. In re Sealed Case, 2013 U.S. App. LEXIS 9787 (D.C. Cir. March 5, 2013), reissued May 16, 2013):

[redacted] Rule 41(g) motions are not independent. Instead, they are part of a strategy of how best to respond to a grand jury investigation. [redacted] argues [redacted] motions are “solely for return of property” because does not seek the suppression of evidence gathered from the documents. Appellant’s Reply Br. 3-4. In so arguing, [redacted] seems to assume that every Rule 41(g) motion falls into one of two categories: motions that seek “solely” return of property, and those that seek return of property and suppression of evidence. But at the time the Court decided DiBella, the dichotomy [redacted] imagines did not exist: granting a Rule 41(g) motion automatically resulted in suppression of the returned evidence. Thus, [redacted] cannot be right that the test for whether a motion is “solely for return of property” turns on whether the motion also seeks suppression. The Court’s objective in crafting the first prong was to distinguish some motions from others: those that are inextricably intertwined with issues to be developed at a forthcoming trial from those that are not. If [redacted] were correct about its meaning, then the first prong would not have served the Court’s desired culling function because seeking the return of property went hand-in-glove with seeking its suppression. See In re Warrant Dated Dec. 14, 1990, 961 F.2d 1241, 1243-44 (6th Cir. 1992) (“[N]o motion … could ever literally comply with the [first prong because] any motion for return of property was automatically treated as a suppression motion as well.” (internal quotation marks omitted)). Sensitive to this peril, courts of appeals have interpreted DiBella to stand for a broader principle than [redacted] acknowledges, one that requires us to look beyond the mere effect of the motion to ascertain its true purpose. See, e.g., id. (“[W]e must look behind the … motion and determine whether the motion essentially sought return of seized property or suppression, delay, or some other such purpose apart from the return of the property.”); Matter of 949 Erie Street, Racine, Wis., 824 F.2d 538, 541 (7th Cir. 1987); In re Grand Jury Proceedings, 716 F.2d 493,495 (8th Cir. 1983); Imperial Distribs., Inc. v. United States, 617 F.2d 892, 895 (1st Cir. 1980); United States v. Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1300 (3d Cir. 1978).

The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial. Our sister circuits have identified factors probative of purpose. For example, many have considered the movant’s need for the property. As such, when the movant has already recovered the property from the government, those courts are reluctant to find that the motion is “solely” for its return. See, e.g., In re Grand Jury, 635 F.3d 101, 104-05 (3d Cir. 2011); Matter of 949 Erie Street, 824 F.2d at 541; Imperial Distribs., 617 F .2d at 895-96. Courts have also considered whether granting the motion would have some effect on the presentation of evidence at a future hearing or trial. See, e.g., In re Grand Jury, 635 F.3d at 104 (holding that a Rule 41 (g) motion was actually a motion to suppress because it “request[ ed] … any copies of the seized documents and … an order directing the government to cease inspecting the evidence pending a ruling” (emphasis in original)); In re 3021 6th Ave. North, 237 F.3d 1039, 1041 (9th Cir. 2001); Imperial
Distribs., 617 F .2d at 896.

On both of these counts, [redacted] motions are not “solely for return of no argument that [redacted] has some need for the seized property. We think it the government has already made almost all of [redacted] property available to., and it has expressed a willingness to return at least it retains. It is also telling that the injury [redacted] asserts is not the deprivation of property but the unlawful revelation of [redacted] private information. [redacted] preoccupation with disclosure rather than return underscores that. invocation of Rule 41 (g) is not about securing [redacted] property’s return. See United States v. Ryan, 402 U.S. 530, 533 (1971) (describing the interest at stake when a motion is “solely for return of property” as the “right to possession”).