1 The Rule 41(e) motion was brought by Brown and his law

offices. Collectively we will refer to both as “Brown.” United States Court of Appeals

Fifth Circuit



## FILED

July 31, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-51031

UNITED STATES OF AMERICA,

Respondent-Appellant,

versus

IN RE: SEARCH OF LAW OFFICE, RESIDENCE, AND STORAGE UNIT ALAN

BROWN; LAW OFFICES OF BROWN AND NORTON,

Petitioners-Appellees.

Appeal from the United States District Court

For the Western District of Texas

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The federal government appeals from the district court’s order

issued pursuant to Federal Rule of Criminal Procedure 41(e)

requiring the government to return docum ents seized from the law

offices and home of Alan Brown, a San Antonio, Texas criminal

defense attorney. The government argues that the district court

erred in concluding under Rule 41(e) that Brown 1 should recover his

property and that the government should make no use of it. We find-2-

that Brow n showed no irreparable injury warranting the district

court’s pre-indictment suppression of the records, and therefore

vacate the district court’s order and remand with instructions to

dismiss this proceeding.

I.

This case concerns the intertwined investigations of tw o

individuals, Brown and his long-time office manager, Kelly Houston.

In the mid-1990s federal agents began investigating Brown’s client,

Sammy Naranjo, for dr ug trafficking. In 1997 this investigation

led agents to suspect that Houston, who was having an affair with

Naranjo, was laundering m oney for him using Brown’s law firm

accounts. Part of the investigation included wiretaps, and the

agents intercepted telephone conversations between Houston and

Naranjo. On September 17, 1997, agents, including Special Agent

James Maxwell of the Internal Revenue Service, arrived at Brown’s

office to deliver notices of intercept to Brown, on behalf of his

client, Naranjo, and to Houston, to inform them that the government

had intercepted their communi cations. Brown, Maxwell, and the

other agent present discussed Houston’s affair with Naran jo, and

subsequent to this first meeting Brown, whom agents did not suspect

was involved in Houston’s alleged money laundering, agreed to

cooperate with the agents in their investigation. Around that time

Houston resigned from Brown’s office because he instructed her that

she could not continue working for him as lon g as she was in a-3-

relationship with Naranjo. Sometime before Houston left the office

she took with her various financial records detailing the office’s

receipt of monies. Although the Assistant United States Attorney

assigned to the case, Tom McHugh, requested in a letter to Houston

that she return these records, she denied having them.

As part of his cooperation with government agents, Brown

allowed the agents complete access to his office and staff members,

who provided the agents with information on how financial records

were kept at the office. Pursuant to their request he also

conducted, at his own expense, an audit of his office’s financial

records, and in February 1998 Brown testified before the grand jury

as to the investigation into Houston’s activities.

That same month the grand jury indicted Naranjo on various

drug trafficking and money launde ring charges. Although Maxwell

and the other agents involved in the investigatio n of Houston

believed that she should also be indicted, McHugh declined to

prosecute because, at the time, he did not believe the agents had

gathered enough evidence to secure a conviction. He did leave open

the possibility, however, that if the agents gathered the evidence

McHugh believed was lacking he would reconsider prosecution.

Naranjo’s case was set for trial in October 1999. Brown was

listed as a g overnment witness, and Naranjo threatened Brown’s

life. Prior to his trial Naranjo also suggested to the same agents

who had investigated him and Houston that Houston could give them

information about ill egal activities being committed by Brown.2 Although in the affida vit Maxwell did not identify Houston

as the confidential informant supplying him with this information,

s ince that time Houston’s identity as the confidential inf ormant

has been made public.

-4- Agents invited Houston to talk with them, and she did. Four days

into his trial, Naranjo pleaded guilty, and Houston requested that,

in return for her cooperation, Naranjo’s sentence be reduced. In

her discussions with the agents Houston st ated that, for many

years, Brown had been committing tax evasion by failing to report

significant amounts of income he received in his practice. She

provided the agents with the financial records she had taken from

Brown’s law office before her departure, and alleged that they

proved that he had underreported income noted as received by him in

the records.

In the summer of 2000 agents believed they had enough

information regarding Brown’s tax evasion to search Brown’s office

and home. On August 22, 2000, Agent Maxwell authored a forty-one

page affidavit detailing Houston’s allegations 2 and evidence

corroborating that information. On the basis of the affidavit the

magistrate judge issued a warrant authorizing a search of Brown’s

office and home, which agents executed the night of August 22 and

early morning of August 23. Additionally, on August 23 Brown

consented to the agents’ request to search two storage units rented

by his law office. Pursuant to procedures outlined in Maxwell’s

affidavit, a “taint team” composed of agents and attorneys separate

from the team of agents investigating Brown conducted the search to-5-

protect a ny potentially privileged information contained in the

records searc hed. The affidavit also provided that after the

seizure the taint agents would maintain the records, which would be

made available to Brown or his staff. During this time Brown could

identify any potentially privileged records and attempt to resolve

the privilege issues with the taint attorneys. If the issues could

not be resolved they would be submitted to a court for

determination.

Brown refused to participate in this privilege procedure, so

the government determined that the taint attorneys would have to

sift through the records themselves to divide those privileged

items from the nonprivileged ones. After this process had begun

Brown moved for a protective order, arguing that his counsel and

the government had agreed that the taint team would not look

through the records until a court had determined the proper

procedure to be employed to resolve the privilege issues. Brown

also requested that the court o rder the seized property returned

pursuant to Federal Rule of Criminal Procedure 41(e) on the basis

that it was illegally seized and that it conta ined privileged

information.

The district court issued a protective order and determined

that Brown’s motion for return of property merited an evidentiary

hearing. Over a year after Brown filed his motion for return of

prope rty, the court held a three-day hearing that focused almost

exclusively on the factual basis for Maxwell’s affidavit in support-6-

of the search warrant application. Specifically, Brown argued that

Maxwell had omitted and misrepresented several material facts that,

had they been revealed to the magistrate judge at the time he was

c onsidering the application, he would not have issued the sea rch

warrant.

Nin e months after the hearing, after prompting by the

government, the district court issued its order granting Brown’s

motion. It concluded that Maxwell had failed to state in the

affidavit that Houston cooperated with government agents to secure

a reduced sentence for her paramour Naranjo, who had threatened

Brown’s life and against whom Brown was set to testify in the

criminal trial, and that Maxwell had also omitted that Houston was

likely cooperating to retaliate against Brown for cooperating with

government agents in the investigation of her alleged money

laundering activities.

The district court additionally determined that Maxwell should

have revealed that he had investigated Houston for money laundering

i nvolving the same financial accounts at issue with regard to

Brown’s tax evasion, and that Maxwell believed she had indeed

committed the offense despite the fact she was never prosecuted for

it. Moreover, the district court found important that Houston had

lied to McHugh about her possession of the firm’s financial

records, and that Maxwell had stated in his affidavit, contrary to

this truth, that he was not aware of any false information Houston

provided to law enforcement officers.3 In Dece mber 2002 Rule 41(e) was relettered as Rule 41(g).

We will use the version of the rule in existence at the time of the

district court’s order. The only difference between Rule 41(e) as

-7- Finally, the district court concluded that Ma xwell had

misrepresented the nature of the receipt books, which Maxwell

averred in the affidavit corroborated Houston’s allegations.

Maxwell had e xplained that the receipt books contained more

notations regarding receipt of monies t han Brown had reported on

his tax returns, but the district court found that the evidence

showed that the receipt books included notations of many different

payments that did not constitute income, but rather court fees,

fees to other attorneys, and restitution amounts.

Based on these findings the district court concluded t hat

Brown was entitled to all of the seized property and the government

should not be allowed to retain copies or make any use of the

evidence, which effectively suppressed the evidence from

consideration by the grand jury as well as in any post-indictment

proceedings. The government appeals this ruling. Although at the

time of the filing of th is appeal Brown had no criminal charges

pending against him, in April of this year the grand jury indicted

Brown on certain tax fraud charges.

II.

Rule 41(e) 3 reads as follows:it existed before the most recent amendments and the new Rule 41(g)

is that 41(e) contained as the last sentence in the provision: “If

a motion for return of property is made or comes on for hearing in

the district of trial after an indictment or information is filed,

it shall be treated also as a motion to suppress under Rule 12.”

The new Rule 41(g) does not contain such a statement, but Rule

41(h) now provides, “A defendant may move to suppress evidence in

the court where the trial will occur, as Rule 12 provides.”

4 F ED

. R. C RIM

. P. 41(e) (2001).

5 497 F.2d 29, 30-31 (5th Cir. 1974).

-8- (e) Motion to Return Property. A person aggrieved by an

unlawful search and seizure of property or by the

deprivation of property may move for the property’s

return. The motion must be filed in the district where

the property was seized. The court must receive evidence

on any factual issue necessary to decide the motion. If

it grants the motion, the court must return the property

to the movant, but may imp ose reasonable conditions to

protect access to the property and its u se in later

proceedings. If a motion for return of property is made

or comes on for hearing in the district of trial after an

indictment or information is filed, it shall be treated

also as a motion to suppress under Rule 12. 4

Our earliest opinions on this rule interpreted it broadly as

empowering a district court to enterta in on equitable grounds a

pre-indictment motion for return of propert y if the government

callously disregarded a search warrant victim’s constitutional

rights. H unsucker v. Phinney concerned a movant’s claim that

government agents illegally searched his apartment and retrie ved

materials that the IRS used to recommend a hefty tax assessment

against him. 5 Before the IRS could actually make the assessment,

Hunsucker filed suit under the declaratory judgment statute and

Rule 41(e) requesting a return of the seized property and an order6 Id.

7 Id. at 31.

8 Id.

9 Id. at 32 (citations omitted).

10 Id.

-9- prohibiting its use as evidence against him. 6 The district court

d ismissed the case. 7 Although the basis for the dismissal was

unclear, it appeared to have been grounded in the district court’s

finding that Hunsucker’s attempt to obtain reli ef was premature. 8

I n determining whether the dismissal was proper, this court

found that

[a] substantial body of precedent establishes that

federal district cour ts have power to order the

suppression or return of unlawfully seized property even

though no indictment has been retu rned and thus no

criminal prosecution is yet in existence. Though firmly

established, this jurisdiction is an exceptional one....

The theor y articulated by most of the cases is that

jurisdiction to order suppre ssion or return prior to

indictment exists not by virtue of any statute but rather

derives from the inherent authority of the cour t over

those who are its officers. 9

We cautioned, however, that “it does not automatically follow that

this unique power should be exercised wherever it exists.

Rather[,] s uch jurisdiction should be exercised with caution and

restraint, and subject to equitable principles.” 10

The panel confirmed that Hunsucker’s was not a case warranting

exercise of this “anomalous jurisdiction,” given that Hunsucker had

not shown that the agents exhibited callous di sregard for his11 Id. at 35.

12 Id.

13 515 F.2d 1239 (5th Cir. 1975).

14 Id. at 1241.

15 Id.

-10- constitutional righ ts since “the search in issue was conducted

pursuant to a warrant issued in the normal manner.” 11 Moreover, he

had an adequate remedy at law for this allegedly unconstitutional

deprivation because, if the IRS did assess the tax, he could bring

a refund suit. Because the government had returned the originals

of the documents to Hunsucker before trial, he could not claim that

he would suffer an “irreparable injury” from waiting to vindicate

his rights “on the theory that some of these materials were

necessary to conduct a legitimate busi ness or were otherwise of

substantial value to” him. 12

A year later, in Richey v. Smith

, we reconsidered the issue of

pre-indictment suits under Rule 41(e). 13 In that case a husband and

wife sued in the district court under Rule 41(e) requesting the

return and suppression of allegedly illegally seized business

records. 14 The district court dismissed the suit for lack of

jur isdiction, because neither plaintiff had been indicted, but

noted that the couple could file a motion to suppress in the event

that a criminal prosecution foll owed. 1 5 R ichey explained that

Hunsucker had listed “some of the considerations that should govern16 Id. (quoting Hunsuck er , 497 F.2d at 34) (some internal

quotation marks omitted).

17 Id. (citing Hunsucker , 497 F.2d at 34-35).

18 Id. at 1243 n.10 (quoting In re Fried

, 161 F.2d 453, 458-59

(2d Cir. 1947)).

19 Id. at 1244.

-11- the decision by the district court whether to exercise this

‘anomalous’ jurisdiction,” including “[f]irst” and “perhaps

foremost,” whether the motion for return of property “alleges that

government agents

... in seizing the property displayed a ‘callous

disregard for the constitutional rights of the taxpayer.’” 16 Other

factors a court should consider are “whether the plaintiff has an

individual interest in and need for the material whose return he

seeks,” whether he “would be irreparably injured by denial of the

return of the property,” and whether he has an “adequate remedy at

law for the redress of his grievance.” 17 It noted, without deciding

the question, that a motion to suppress may not constitute an

adequate remedy at law for a potential criminal defendant, because

“‘a wrongful indictment is no laughing matter; often it works a

grievous, irreparable injury to t he person indicted. The stigma

cannot be easily erased. In the public mind, the blot on a man’s

escutcheon

... is seldom wiped out by a subsequent judgment of not

guilty.’” 18

The Richey panel remanded the case to the district court for

a hearing on the plaintiff’s allegations. 19 The court also stated20 Id. at 1245.

21 Id. (quoting Lord v. Kelley

, 223 F. Supp. 684, 691 (D. Mass.

1963)).

22 414 U.S. 338, 349 n.6 (1974).

23 Id. at 339.

24 Id. at 340.

-12- that the district court would have to decide the appropriate relief

to be granted should the plaintiffs prevail, reasoning that “a

motion prior to any suggestion of criminal proceedings, as here, is

more properly considered simply as a suit in equity rather than one

under the Rules of Criminal Procedure,” and “[s]o viewed, return of

the property would not necessarily entail suppression for the

purposes of further court proceedin gs.” 20 As support for this

proposition the court stated that while the taxpayer was entitled

“‘to be as well off as if (the IRS agent) had not unlawfully seized

those papers,’” he was “‘not entitled to be any better off.’” 21

In United States v. Calandra

, released around the same time as

Richey

, the Supreme Court suggested that the equitable powers of a

district court under Rule 41(e) do have certain limitations. 22 In

that case a grand jury witness refused to answer grand jury

questions on the ground that they were based on illegally obtained

evidence. 2 3 Federal agents had secured a search warrant of

Calandra’s place of business in connection with their investigation

into possible illegal gambling operations being carried out there. 2425 Id. at 341.

26 Id. at 341-42.

27 Id. at 342.

28 Id.

-13- After the search Calandra moved under Rule 41(e) for suppression

and return of the seized evidence, conten ding that the affidavit

supporting the warrant wa s insufficient and that the search

exceeded the warrant’s scope. 25 After a hearing the district court

ordered the evidence suppressed and returne d to Calandra and

further ordered that Calandra need not answer any of the grand

jury’s question s based on the suppressed evidence. 2 6 The Sixth

Circuit affirmed, concluding that the district court “had properly

entertained the suppression motion and that the exclusionary rule

may be invoked by a witne ss before the grand jury to bar

questioning based on evidence obtai ned in an unlawful search and

seizure.” 27

The government petitioned for certiorari on the issue whether,

under the exclusionary rule, Calandra could refuse to answer

questions before the grand jury on the ground that they were based

on illegally obtained evidence, and the Supreme Court granted

certiorari and reversed. 28 The Court reasoned that “[t]he grand

jury’s sources of information are widely drawn, and the validity of

an indictment is not affected by the character of the evidence29 Id. at 344-45.

30 Id. at 348.

31 Id. at 349 (internal quotation marks, citations , and

footnotes omitted).

-14- considere d,” 2 9 and added, “the exclusionary rule has never been

interpreted to proscribe the use of illeg ally seized evidence in

all proceedings or against all persons.” 30

Of par amount importance to the C alandra Court was the

exclusionary rule’s potential for hamstringing grand jury

investigations:

It is evident that this extension of the exclusionary

rule would seriously impede the grand jury. Because the

grand jury does not finally adjud icate guilt or

innocence, it has tradit ionally been allowed to pursue

its investigative and accusatorial functions unimpeded by

the evidentiary and procedural restrictions applicable to

a criminal trial. Permitting witnesses to invoke the

exclusionary rule before a grand jury would precipitate

adjudication of issues hitherto reserved for the trial on

the merits and would delay and disrupt grand jury

proceedings. Suppression hearings would halt the orderly

progress of an investigation and might necessitate

extended litigation of issues only tangentially related

to the grand jury’s primary objective. The probable

result would be protracted interruption of grand jury

proceedings, effectively transforming them into

preliminary trials on the merits. In some cases the

delay might be fatal to the enforcement of the criminal

law. 31

The Court rejected the view that the deterrent effect extension of

the exclusionary rule to pre-indictment proceedings would have on

police misconduct overrode these concerns, because “ [ s]uch an

extension would deter only police [misconduct] consciously directed32 Id. at 351.

33 Id.

34 Id. at 348 n.6.

35 Id.

-15- toward th e discovery of evidence solely for use in a grand jury

investigation.” 32 Any incentive on the part of law enforcement “to

disregard the requirement of the Fourth Amendment solely to obtain

an indictment from a grand jury is substantially negated by the

inadmissibility of the illegally seized evidence in a subsequent

criminal prosecution of the search victim.” 33

Calandra argued that the exclusionar y rule applied to grand

jury proceedings by way of Rule 41(e), which at that time provided

that “[a] person aggrieved by an unlawful search and seizure may

move the district court ... for the return of the property and to

suppress for the use as evidence anything so obtained.” 34 The Court

dismissed Calandra’s reliance on the rule, stating that “Rule 41(e)

... does not constitute a statutory expansion of the exclusionary

rule.” 35 The Court concluded, “[i]n the context of a grand jury

proceeding, we believe that the damage to that institution from”

extension of the exclusionary rule “outweighs the ben efit of any

possible incremental deterrent effect. Our conclusion necessarily

controls both the evidence seized during the course of an unlawful

search and seizure and any question or evidence derived therefrom36 Id. at 355.

37 This conclusion is bolstered by Calandra ’s statement that

remedies for an illegal search and seizure include a Bivens action

against the officers who conducted the illegal search and a postindictment motion for suppression and return of i llegally-seized

property. I d. at 354 n.10. It noticeably omitted from mention the

possibility that Rule 41(e) could ever be used by the victim of an

illegal search to suppress evidence pre-indictment.

38 F ED

. R. C RIM

. P. 41(e) (Advisory Committee notes to the 1989

amendments).

-16- (the fruits of the unlawful search).” 36

Calandra clearly implied that the target of a government

investigation could not use Rule 41(e) – which extends no further

than the limits of the exclusionary rule – to prevent the grand

jury from having access to illegally obtained evidence. 37 In 1989

the Advisory Committee to the Federal Rules of Criminal Procedure,

noti ng C alandra

, amended Rule 41(e) to omit language dating from

1944 which stated that evidence shall be suppressed if the court

grants a motion to return property. Its notes on the amendment

explained,

Rule 41(e) is not intended to deny the United States the

use of evidence permitted by the fourth amendment and

federal statutes, even if the evidence might have been

unlawfully seized. United States v. Calandra , 414 U.S.

338, 349 n.6 (197[4]) (“Rule 41(e) does not constitute a

statutory expansion of the exclusionary rule.”). 38

The Committee also called into question our suggestion in Hunsucker

that the victim of an unlawful search has a right not only to

return of the original documents but also to all copies, instead

proposing that cases which “have held that the government must39 Id.

40 F ED

. R. C RIM

. P. 41(e) (Advisory Committee notes to the 1989

amendments) (“As amended, Rule 41(e) avoids an all or nothing

approach whereby the government must either return records and make

no copies or keep originals notwithstanding the hardship to their

owner.... In many instances documents and records that are relevant

to ongoing or contemplated investigations and prosecutions may be

returned to their owner as long as the government preserves a copy

for future use. In some circumstances, however, equitable

considerations might justify an order requiring the government to

return or destroy all copies of records that it has seized .”

(emphasis added) (citing Paton v. LaPrade

, 524 F.2d 862, 867-69 (3d

Cir. 1975)).

41 524 F.2d at 867-69.

-17- return copies of records where the originals were illegally seized

... are quest ionable in situations in which the government is

permitted under Supreme Court de cisions to use illegally seized

evidence.” 39 It instead cautioned that, even in cases of illegally

seized property, “[i]f the United States has a need for the

property in an investigation

... its retention of the property

generally is reasonable.”

Despite these indications that Rule 41(e) canno t block the

government’s presentation of illegally seized evidence to the grand

jury, the Committee notes do leave open the possibility that, in

certain circumstances, equitable considerations may warrant the

government’s return of all seized records. 40 However, the case it

cited as an example of s uch a situation, P aton v. LaPrade

, 41 is

markedly diff erent from Brown’s. In P aton

, the Third Circuit

confronted the issue whether a plaintiff should be allowed to have42 Id.

43 Id. at 865.

44 Id. at 866.

45 Id.

46 Id. at 868.

-18- her FBI record expunged on the basis that it was the result of an

illegal search. 42 The plaintiff, a high school student, had sent

a letter to the Socialist Workers Party requesting information for

an assignmen t in her social studies class. 4 3 The FBI illegally

intercepted the letter and created a file on the student, and added

her name to a name index file with the filing symbol, “SM-SWP,”

which stood for “Subversive Matter-Socialist Workers Party.” 44 The

FBI further investigated the student and learned that she had sent

the letter to t he SWP for a class assignment and was not herself

involved in subversive activities . However, the FBI did not

destroy the file. 45

The student learned of the FBI’s investigation and filed suit

under a statute criminalizing mail theft. She requested

expungement of her FBI file on the ground that it “could endanger

her future educational and employment opportunities,” since Paton

“plan[ned] to s t udy Chinese and then seek governmental

employment.” 46 The district court ordered expungement. The Third

Circuit vacated the ruling on the basis that the factual record did

not support the order, since it did not reveal “the scope and form47 Id. at 869.

48 The government confirmed at oral argument that although the

grand jury has indicted Brown on federal tax charges the grand jury

investigation is still active.

-19- of dissemination of the Paton file, its utility to the FBI, and the

pertinent facts necessary for a determina tion of the legality of

the mail cover.” 47

The Advisory Committee apparently believed that in a similar

situation a district court could properly order complete

destruction of the file under Rule 41(e). Importantly, Paton did

not concern an ongoing criminal investigation, but instead a closed

one. The balance of equities in such a situation would more likely

favor complete destruction or return of the evidence than in

circumstances such as Brown’s, where the grand jury investigation

into his activities is ongoing. 48

Although the commentary to Rule 41(e) does n ot absolutely

foreclose use of the rule to suppress evidence going before a grand

jury, we are convinced by both Calandra and the Advisory

Committee’s notes that Rule 41(e) does not permit a district court

to order complete suppression of sei zed evidence absent, at the

very least, a substantial showing of irreparable harm. Even prior

to the amendments, the Supreme Court recognized that a suppression

motion under Rule 41(e) should not be granted absent proof of such49 In G. M. Leasing Corp. v. United States , the Supreme Court

seconded our view in Hunsucker that a necessary prerequisite to a

Rule 41(e) suppression remedy was the movant’s showing of

irreparable harm, reasoning:

The suppression issue, as to the books and records,

obviously is premature and may be considered if and when

proceedings arise in which the Government seeks to use

the documents or information obtained from them. A nd the

irreparable injury require d to support a motion to

suppress, under Fed. Rule Crim. Proc. 41(e), on equitable

grounds in advance of any proceedings, has not been

demonstrated.

429 U.S. 338, 359-60 (1977) (emphasis added) (citing Hunsucker v.

Phinney , 497 F.2d 29, 34 (5th Cir. 1974)).

50 Calan dra , 414 U.S. at 349-50 (internal quotation marks

omitted). The facts of Brown’s case resemble Calandra’s, in which

almost two and a half years elapsed between the time Calandra was

summoned to appear and testify before the grand jury and the date

o n which the Supreme Court issued its decision. I d. at 34 9 n.7.

The Court reasoned, “[i]f respondent’s testimony was vital to the

-20- injury. 49 Such a showing is imperative given the concerns C alandra

voiced about impeding a grand jury investigatio n, which have all

materialized in Brown’s case. The government has been unable to

view any of the seized evidence since entry of the protective order

in October 2000, and the district court did not decide the motion

for return of property until almost two years after Brown filed it.

As t he Calandra C ourt feared would be the probable result if the

exclusionary rule were extended to pre-indictment proceedings, the

result of Brown’s 41(e) motions has been “protracted interruption”

of the grand jury investigation, and a three- day evidentiary

hearing that was “effectively

... [a] prelimina ry trial[] on the

merits.” 50grand jury’s investigation

... it is possible that this particular

investigation has been completely frustrated.” Id.

-21- Despite the necessity of proving irreparable harm, Brown has

g iven short shrift to this component of 41(e). Given that the

government has allowed Brown constant access to the records since

their seizure and has been hospitable to his staff’s copying of any

n eeded record, Brown does not contend that the government’s

possession of the seized documents does irreparable injury to his

b usiness. Instead, he urges that the government’s alleged

invasions into attorney-client privileged documents justify the

district court’s order. However, as the government pointed out to

the district court, despite his ready access to the evidence, at no

time has Brown made any effort to identify specific privileged

documents in the hands of the government or provide a legal basis

for asserting a particular privilege. Brown has failed to indicate

the amount of privileged documents the government has or the volume

of privileged documents the government taint team allegedly perused

after seizure. Instead, his argument, both in the district court

and in our court, has consisted of vague allegations that the

government viewed extensive amounts of privileged information

during the search of his law office and after the documents’

seizure. Since Brown has failed to offer proof substantiating

these assertions, they do not suffice to prove irreparable injury

warranting the drastic relief granted by the district court.

Brown also argues that he will suffer irreparable harm because51 Richey v. Smith , 515 F.2d 1243 n.10 (quoting I n re Fried

,

161 F.2d 453, 458-59 (2d Cir. 1947)).

52 Ramsden v. United States , 2 F.3d 322, 326 (9th Cir. 1993).

53 This is reflected in the fact th at subsequent to the 1989

amendme nts the rule allows a victim of even a lawful search and

seizure to move for the return of property. S ee F ED

. R. C RIM

. P.

41(e) (2001). Moreover, the commentary to the amendments emphasize

that courts should balance “law enforcement interests” in the

property with the movant’s possessory interest in the property and

-22- of the re putational damage he would suffer from being indicted.

After the government filed the appeal, the grand jury did indict

Brown on federal tax charges without the benefit of the evidence at

i ssue. We will nonetheless address Brown’s argument because the

potential exists that the grand jury could yet rely on the seized

evidence to indict Brown on additional charges. In R ichey we

cautioned that “‘a wrongful indictment is no laughing matter; often

it works a grievous, irreparable injury to the person indicted.’” 51

At the same time, the Ninth Circuit more recently observed, “if the

mere threat of prosecution were allowed to constitute irreparable

harm [for purposes of Rule 41(e)], every potential defendant could

point to the same harm and invoke the equi table powers of the

dis trict court .... [T]he district court’s exercise of its

equitable jurisdiction would not be ext raordinary, but instead

quite ordinary.” 52 The 1989 amendments to Rule 41(e) and the

Advisory Committee’s notes on those amendments encourage courts to

focus on the harmful effects the loss of the property wreaks on the

movant. 53 Taking that nudge, we conclude that the irreparable harmthe “hardship” to the property owner from loss of the property.

Id. (Advisory Committee notes to the 1989 amendments).

54 We do not pass upon Brown’s allegations that the government

p ossesses potentially privileged information. We leave those to

the district court in which the criminal proceeding is pending.

-23- which Brown must have proven to prevail in the Rule 41(e)

proceeding must have focused on the injur y to Brown from loss of

the property, not simply harm from the grand jury’s reliance on the

illegally seized evidence in indicting him

– Calandra allows that.

III.

Brown has not demonstrated the harm necessary to support the

district court’s order requiring return and complete suppression of

the evidence. We VACATE the district court’s order and REMAND with

instructions to the district court to dismi ss this civil

proceeding. We express no opinion on any motion to suppress Brown

may file in his now pending criminal case. 54

VACATED and REMANDED.