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
‐ 2 ‐ 

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.     
‐ 3 ‐ 

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
‐ 4 ‐ 

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
‐ 5 ‐ 

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