2003 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

for the Thir d C ir c uit

1-9-2003



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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al

D ock e t 02-1887

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. e du/thir dc ir c uit_2003/889NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 02-1887

___________

UNITED STATES OF AMERICA

Appellee

v.

MARIA PARLAVECCHIO

Appellant

___________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(No. 00-CR-312)

District Judge: The Honorable Malcolm Muir

___________

Argued on November 1, 2002

Before: SLOVITER, FUENTES, Circuit Judges , FULLAM,* District Judge

(Opinion filed: January 9, 2003)

___________

* The Honorable John P. Fullam, United States District Judge for the Eastern District of

Pennsylvania, sitting by designation.2 ________________________

Michael P. Smith (argued)

27 Elk Street

Albany, NY 12207

Attorney for Appellant

Wayne P. Samuelson (argued)

Office of the United States Attorney

240 West Third Street

Suite 316

Williamsport, PA 17701

Attorney for Appellee

________________________

OPINION OF THE COURT

________________________

FUENTES, Circuit Judge

.

Maria Parlavecchio (“Mrs. Parlavecch i o”) appeals the dismissal of her motion for the

return of pr operty filed pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure.

For the reasons set forth below, we affirm the judgment of the District Court.

I.

A.

On December 13, 2 000, a grand jury sitting in the Middle District of Pennsylvania

returned an eleven-count indictment charging Mrs. Parlavecchio and two other individuals with,

among other things

, conspiracy to bribe a public official and conspiracy to provide prohibited1 The two other individuals named in the indictment were Antonio Parlavecchio (“Mr.

Parlavecchio”), Mrs. Parlavecchio’s husband, and John Alite (“Alite”), a co-conspirator.

3 objects to an inmate. 1 S e e 18 U.S.C. §§ 371, 1791. On January 18, 2001, Mrs. Parlavecchio

was arraigned on the superseding charges to which she entered a plea of not guilty. After

discussions wit

h the government, Mrs. Parlavecchio pleaded guilty on August 29, 2001 to one

count of providing an inmate with prohib ited objects, in this case, “food stuffs, toiletries and

sperm kits.”

In connection with Mrs. Parlavecchio’s guilty plea and sentencing, t he District Court

found the followin

g facts undisputed. Mr. Parlavecchio was an inmate at the Allenwood

Federal Correctional Institu tion (“Allenwood”) serving a sentence on a prior conviction. He

and his co-conspirators bribed a corrections officer at Allenwood wh o agreed to obtain food,

toiletries, and cryogenic sperm preservation kits from Mrs. Parlavecchio and to deliver them

to Mr. Parlavecchio. According to the District Court, “Mr. Parlavecchio would then fill the

sperm preservation kits with his seminal fluid s and the kits would be returned to [the

Allenwood corrections officer] who would transport the kits from the prison to Mrs.

Parlavecchio.” U

nited S tates v. Parlavecchio , 192 F. Supp. 2d 349, 350 (M.D. Pa. 2002).

Thereafter, Mrs. Parlavecchio to ok the sperm kits to the Park Avenue Fertility Clinic in New

York City for preservation. In or about October 2000, Mrs. Parlavecchio directed that her

husband’s seminal fluids be forwarded to her obstetrician and gyn ecologist, Dr. Cecilia

Schmidt- Sarosi, whose office was also in New York City. The Court found that one of the

principal objects of the conspiracy was to enable Mrs. Par lavecchio to conceive a child4

through artificial insemination of her husband’s sperm.

During the governmen

t’s investigation, agents uncovered the existence of Mr.

Parlavecc hio’s seminal fluid and its location–the New York City office of Dr. Schmidt-Sarosi.

Government agents communicated with Dr. Schmidt-Sarosi and specifically requested that she

not rele ase the preserved sperm to anyone. Dr. Schmidt-Sarosi complied. Despite requests

from Mrs. Parlavecchio, Dr. Schmidt-Sarosi refused to release Mr. Parlavecchio’s seminal

fluid.

Unable to obtain her husband’s sperm, Mrs. Parlavecchio moved pursua nt to Rule 41(e)

for the return of the seminal fluid. The circumstances under which that motion was made have

some relevance to the issues on appeal. Mrs. Parlavecchio’s counsel stated his intention to

file the motion at his client’s sentencing. After the District Court issued its sentence, but

before judg

ment was entered, counsel for Mrs. Parlavecchio informed the court of his intent

to file a motion for return of property and sought a briefing schedule. At that point, it is clear

that the District Court was still e xercising its supervisory authority in the matter as it brokered

a stay o f the destruction of the seminal fluid pending the briefing on Mrs. Parlavecchio’s Rule

41(e) motion. The Government agreed to refrain from destroying Mr. Parlavecchio’s

preserved sperm until a definitive ruling on Mrs. Parlavecchio’s motion.

B.

Upon the conclusion of briefing, the District Court held, at the outset, that it had

ancillary jurisdiction to entertain Mrs. Parlavecchio’s Rule 41(e) motion as a civil equitable

proceeding arising out of the underlying crimina l action. P arlavecchio

, 192 F. Supp. 2d at 352.2 Mrs. Parlavecchio does not challenge the District Court’s ultimate disposition on the

merits that she was not entitled to th e return of the fruits of her criminal activity. We limit

ourselves accordingly to the jurisdictional issues presented in her appeal.

5 Furthermore, the District Co urt found that the criminal conduct to which Mrs. Parlavecchio

pleaded guilty was conspiracy to bribe a public official , that is, “the illegal payment of money

in exchan ge for receiving seminal fluids from Mrs. Parlavecchio’s husband.” I d

. In essence,

Mrs. Parlavecchio was seeking a retur n of the very fruits of her criminal activity. The District

Court held, therefore, that a return of the seminal fluid would violate the basi c principle that

a claimant in a civil equitable proc eeding must come into court with “clean hands.” I d. The

District Court declined to exercise its equitable powers to aid Mrs. Parlavecchio.

As the summary of the procedural history suggests, Mrs. Parlave cchio finds herself in

the position of adopting diametrically opposed positions in the same case . In the District

Court, she was the movant under Rule 41(e) and thus invoked the court’s ancillary jurisdictio n

.

Having lost, she now claims on appeal that (1) the District Co u rt never had jurisdiction to

address the merits of her motion; and (2) in any event, the Middle District of Pennsylvania was

not the proper venue. 2

II.

The District Court had ancillary jurisdiction to entertain Mrs. Parlavecchio’s motion

for the return of property pursuant to Rule 41(e). S ee United States v. Chamber s , 192 F.3d

374, 376 (3d Cir. 19 99); Rufu v. United States , 20 F.3d 63, 65 (2d Cir. 1994). Because Mrs.

Parlavecchio pleaded guilty and because her husband’s semina l fluid is no longer “intimately6

involved in the criminal

process,” we have jurisdiction to review the District Court’s final

order denying her motion. G overnment of the Virgin Islands v. Edwards , 903 F.2d 267, 271

(3d Cir. 1990). “We review the District Court’s decision to exercise its equitable jurisdiction

for abuse of discretion.” Chambers , 192 F.3d at 376.

III.

Mrs. Parlavecchio advances two principal arguments on appeal . First, she contends that

the District Court did not have a basis for exercising subject matter jurisdiction o ver her

motion i n the first place. She argues that Rule 41(e), as a rule of procedure, cannot by itself

confer subject matter jurisdiction upon the court. Mrs. Parlavecchio believes that the only

basis for subject matter jurisdiction rests with federal question jurisdiction pursuant to 28

U.S.C. § 1331. On that basis, she contends that Rule 41(e) may only be triggered if the

property in question was actually and physically seized by the government in violation of the

Fourth Amendment.

Second, Mrs. Parlavecchio contends that venue was improp er in the Middle District of

Pennsylv ania. It is undisputed that the property at issue in her Rule 41(e) motion was located

in Dr. Schmidt-Sarosi’s office in New York City during the relevant time period. Mrs.

Parlavecchio relies on a decision from the Fourth Circuit Court of Appeals, holding that a

post-conviction motion for the return of property must be fi led in the district in which the

property was seized and may not be filed in the district in which the def endant was prosecuted,

should those two locations be differen t. See United States v. Garcia , 65 F.3d 17, 20-21 (4th

Cir. 19 95). Therefore, Mrs. Parlavecchio argues that her motion should have been dismissed7

on these grounds as well.

At the outset, we reiterate the well-settled principle that the government is permitted

to seize evidence for use in a criminal investigation and trial, but that such property must be

returned once criminal proceedings have concluded, unless the prope rty is contraband or

subj ect to forfeiture. C hambers

, 192 F.3d at 376 (citing United States v. 608 Taylor Ave.,

Apartment 302

, 584 F.2d 1297, 1302 (3d Cir. 1978)). Application of this fundamental

principle clearly counsels against returning the fruits of h e r admitted criminal activity to Mrs.

Parlavecchio.

We find no merit in Mrs. Parlavecchio’s co ntention that the District Court lacked

subject matter j urisdiction. Our decisions have consistently held that District Courts have

jurisdiction to entertain post-conviction motions for the return of property and that such

motions shall be treated as civil actions in equity. U nited States v. Bein

, 214 F.3 d 408, 411

(3d Cir. 2000) (“A dist

rict court has jurisdiction to entertain a motion for return of property

even after the termination of criminal proceedings against the defenda nt and such an action is

treated as a civ

il proceeding for equitable relief.”); U nited States v. McGlory

, 202 F.3d 664,

670 (3d Cir. 2000); Chambers

, 192 F.3d at 376. Implicit in these decisions is our recognition

that the District Courts’ jurisdiction to entertain Rule 41(e) motions is ancillary to the

underlying criminal proceedings and that subject matter juri sdiction rests upon the District

Courts’ supervisory authority over these ancillary proceed ings. S ee

, e.g.

, Thompson v.

Covington

, 47 F.3d 974, 975 (8th Cir. 1995) (“[T]he district court where the claimant was tried

has subject matter jurisdiction ancillary to its criminal jurisdiction to hear the equitable8

action.”).

Therefore, Mrs. Parlavecchio’s contention that 28 U.S.C. § 1331 must be the basis of

subject matter jur isdiction in the context of Rule 41(e) is unsupported. Accordingly, her

unfounded belief that only an actual, physical se izure of property in violation of the Fourth

Amendment will t

rigger a Rule 41(e) motion must also be rejected. In any event, we have

noted previously that the 1989 amendments to Rule 41(e) eliminated t he limitation “to

property held following an unlawful search or seizure. Now, any person aggrieved by ‘the

deprivation of property ’ may file a Rule 41(e) motion to require the government to return the

property.” E

dwards

, 903 F.3d at 273. Thus, we hold that the District Court had subject matter

jurisdiction to entertain Mrs. Parlavecchio’s Rule 41(e) motion.

Having found that the District Court properly exercised jurisd iction over Mrs.

Parlavecchio’s mot

ion, we also find that, under the circumstances present here, the Middle

District of Pennsylvania was the proper venue. We recognize a split in authority among the

Circuit Courts as to the proper venue for a post-convict ion motion for return of property. This

Court has not addressed directly the venue issue. Mrs. Parlavecchio cites the Fourth Circuit

Court of Appeals’ decision in G arcia to support her contention that the Middle District of

Pennsylvania was not the proper venue for her motion, as her husband’s seminal fluid was

located in New York City. 65 F.3d at 20-21. The government notes, however, that the Second

and Eighth Circuit Courts of Appeal have held that in t he exercise of its ancillary jurisdiction,

the dist rict in which the Rule 41(e) claimant is tried is a proper venue for the motion. U nited

States v. Giovanelli , 998 F.2d 116, 118 (2d Cir. 1993); Thompson , 47 F.3d at 975.9

Given the circumstances present here, we agr ee that venue was proper in the Middle

District of Pennsylvania

– the district in which Mrs. Parlavecchio pleaded g u ilty. We

underscore that Mr s. Parlavecchio’s request for motion practice was made immediately after

the District Court issued her sentence, but be fore judgment was formally entered. Also before

judgment was entered, the District Court arranged a stay of the destruction of t h e seminal fluid

pending its decision on the motion. The government represented on the record that it would

comply with the stay. In short, the District Court had not relinquished its supervisory authority

over the matter and had the government breached its obligation pursuant to the stay, the Court

would have been able to invoke its disciplinary powers. Given these circumstances, logic

favors permitting the District Cou rt to retain jurisdiction and venue over these on-going

proceedings to decide the Rule 41(e) motion in the interest of judicial economy. T

hompson

,

65 F.3d at 21 (Murnaghan, J., dissenting ).

Thus, we hold that (1) the District Court had ancillary jurisdiction to entertain Mrs.

Parlavecchio’s Rule 41(e) motion; and (2) venue was prop er in the Middle District of

Pennsylvania. Although Mrs. Parlavecchio has not challenged the merits of the District

Court’s decision on appeal, we note our concurrence with the District Court in that regard. The

District Judge properly refused to exe rcise its equitable powers to assist a claimant from

recovering the fruits of her criminal activity.

As a final matter, we note, in passing, that on April 29, 2002, the Supreme Court

ordered the most recen

t amendments to Rule 41(e). Upon taking effect, the most recent

amendments will put to rest any debate relating to the proper venue for a post-conviction Rule10

41(e) motion. The new rule expressly requires post-conviction motions for the return of

property to be made in the district where the property at issue was seized. Rule 41(e) is

replaced in the amendmen ts by Rule 41(g) which proposes that “[a] person aggrieved by an

unlawful search and seizure of property or by the deprivat ion of property may move for the

property’s return. The motion must be filed in the district where the property was seized.”

App. at A-112. Although we agree with Mrs. Parlavecchio that the amended Rule 41(g) will

e liminate much of the confusion surrounding venue for post-conviction motions for re turn of

property, we cannot concur that the am endments should control the District Court’s reading

of Rule 41(e) at the time its decision was made. Under the circumstances present here, it was

not an abuse of discretion for the District Court to exercise subject matter jurisdiction over

Mrs. Parlavecchio’s Rule 41(e) motion filed in the Middle District of Pennsylvania.

IV.

For the reasons set forth above, we AFFIRM the judgment of the District Court.11 By the Court,

/s/ Julio M. Fuentes

Circuit Judge