CLD-172 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 24-1404

___________

NICHOLAS KYLE MARTINO,

Appellant

v.

UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 1-23-cv-16859)

District Judge: Honorable Noel L. Hillman (Ret.)

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect, 

Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B), or

Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

August 22, 2024

Before: KRAUSE, FREEMAN, and SCIRICA, Circuit Judges

(Opinion filed: August 28, 2024)

_________

OPINION*

_________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Appellant Nicholas Martino appeals from an order of the District Court denying a

petition for injunctive relief and supporting motions, including a motion for replevin of 

seized property. Upon review, we will dismiss the appeal in part, and otherwise 

summarily affirm the District Court’s judgment. See 3d Cir. I.O.P. 10.6 (providing that 

this Court may take summary action if the appeal fails to present a substantial question).

Martino is under criminal investigation by the United States Attorney’s Office for 

the District of New Jersey. In connection with that investigation, the Federal Bureau of 

Investigation (FBI) executed six search warrants in August 2022,

1 seizing property from 

Martino, his residences, and his vehicles, including encrypted computers and storage 

media. Some of the seized property was returned to Martino in July 2023. In September 

2023, he filed a petition in the District Court for the District of New Jersey seeking an 

order enjoining the Government from reviewing the remaining seized property until (1) it 

files a declaration indicating what “filter protocol,” if any, it used or intends to use to 

review “privileged” materials, and (2) it identifies the Government agents/employees 

who have viewed any “privileged” materials. ECF 1 at 4-5. Martino also filed a motion 

for replevin, pursuant to Federal Rule of Criminal Procedure 41(g), which provides that 

“[a] person aggrieved by an unlawful search and seizure of property or by the deprivation 

of property may move for the property’s return.” Martino sought return of all property 

1 The search warrants and supporting documents were sealed by the District Court. The 

criminal investigation is ongoing, and no criminal charges have been filed.
3

seized outside the scope of the warrants, or the ability to copy data from the seized 

devices. See ECF No. 4. The District Court denied the petition and motions for relief in 

a single order, and this appeal ensued.

We first address the scope of our jurisdiction, which is generally limited to final 

orders of the District Court. See 28 U.S.C. § 1291. Where, as here, the return of 

property is sought pre-indictment, an order denying a Rule 41(g) motion is final and 

appealable “if the motion is solely for return of property and is in no way tied to a 

criminal prosecution in esse against the movant.” DiBella v. United States, 369 U.S. 121, 

131-32 (3d Cir. 1962). A criminal prosecution is “in esse,” i.e., existing, “[w]hen at the 

time of the ruling there is outstanding a complaint, or a detention or release on bail 

following arrest, or an arraignment, information, or indictment.” Id. at 131. 

We have recognized that a prosecution may be in esse for purposes of DiBella

even if the appellant is not under arrest or indictment. See In re Grand Jury, 635 F.3d 

101, 104 (3d Cir. 2011). In that case, we noted that the Rule 41(g) motion sought not just 

the return of property but the suppression of evidence. Id. We also emphasized that the 

Appellant was the subject of an ongoing grand jury investigation. Under those 

circumstances, we concluded, it could not be said that the motion was not tied to a 

criminal prosecution.” Id. (noting that it is “enough under DiBella to require that . . . the 

appeal be dismissed” if the Rule 41(g) motion seeks the suppression of evidence).

Under the circumstances here, we have no trouble finding that Martino’s Rule 

41(g) motion is tied to his criminal prosecution. First, his motion sought more than just 
4

the return of property. He argued that property was seized “outside the scope of the 

search warrants, therefore making those searches and seizures unlawful and afoul of the 

Fourth Amendment.” ECF No. 6-1 at 9; see also ECF No. 2 at 3-4. He also maintained 

that “[t]he search of [his] person was unlawful,” and that a “portion of the warrant is 

patently and unconstitutionally overbroad in violation of the Fourth Amendment.” ECF 

No. 6-1 at 4-5. For relief, inter alia, he sought the “return of all property seized outside 

the scope of the warrants.” ECF No. 2 at 3. To the extent that the motion challenged the 

basis for the seizure and sought the return of allegedly wrongfully seized property, it 

implicitly seeks to prevent the use of that property as evidence. See United States v. 

Nocito, 64 F.4th 76, 82 (3d Cir. 2023) (noting that a court must assess “the essential 

character of the motion” in determining whether the Rule 41(g) motion “seeks more than 

the mere return of property”); see also In re Grand Jury, 635 F.3d at 104 (noting that a 

motion that seeks “to prevent the government from using the evidence in the 

proceedings” is a motion to suppress the evidence). 

Second, although the nature of the criminal investigation is unclear because the 

warrants and supporting documents have been sealed, it is clear from the Government’s 

responses that Martino is the target of a grand jury investigation. See ECF No. 11 at 5 

(arguing that the court should deny Martino’s petition to unseal the search warrant

documents because “[u]nfettered access to the search warrant documents w[ould] result 

in the disclosure of grand jury materials and testimony and expose the Government’s 

investigative methods to the target of an investigation”). Indeed, the information in the 
5

global affidavit supporting the search warrants was obtained from grand jury subpoenas 

and testimony. ECF No. 11 at 2. And the Government has indicated that the 

investigation is ongoing. ECF Nos. 10 at 2; 11 at 1, 3.

Finally, we agree with the District Court that Martino sought to gain “a strategic 

advantage” through his Rule 41(g) motion. Nocito, 64 F.4th at 81 (noting “[i]f a motion 

for the return of property is made independently of a criminal prosecution – in that it is 

not intended to gain some strategic advantage for a criminal defendant – the order 

denying relief is final”); see ECF No. 17 at 7 (finding that Martino’s motion was “nothing 

more than an attempt, bordering on arrogance, to control and influence an ongoing 

criminal investigation or investigations that led to the seizure of the various items at 

issue”). In support of his motion, Martino emphasized that more than a year had passed 

since the property was seized, no charges had been filed, and “the Government should 

now have concluded that nothing it seized resulted in anything of much evidentiary 

value.” ECF No. 6-1 at 12. Notably, in its response, the Government advised that the 

investigation was prolonged, in part, because some of the remaining property included 

encrypted electronic devices and storage media that it was trying to decrypt and access.2 

See ECF No. 11 at 3. 

2 Martino maintains that he offered to assist the Government in unlocking the encrypted 

devices “but only if a filter protocol was established for those devices.” ECF No. 7 at 15. 
6

In sum, the Rule 41(g) motion did not solely seek the return of property, and was 

clearly tied to the ongoing criminal investigation against Martino. Accordingly, to the 

extent the order denied that motion, it is a non-final order which we lack jurisdiction to 

review.

We have jurisdiction, however, to review the order to the extent it denied the 

petition for injunctive relief. See 28 U.S.C. § 1292(a)(1); see In re Search Warrant Issued 

June 13, 2019, 942 F.3d 159, 169 (4th Cir. 2019). We find no abuse of discretion. See

Holland v. Rosen, 895 F.3d 272, 285 (3d Cir. 2018) (noting the standard of review).

To succeed on his request for a preliminary injunction, Martino had to 

demonstrate that (1) he was likely to succeed on the merits; (2) he was likely to suffer 

irreparable harm absent the requested relief; (3) the balance of equities weighed in his 

favor; and (4) a preliminary injunction was in the public interest. See Ferring Pharms., 

Inc. v. Watson Pharms., Inc., 765 F.3d 205, 210 (3d Cir. 2014). Martino argued that 

some of the property retained by the Government was privileged; he sought to enjoin the 

Government from reviewing the remaining seized property until it established a filter 

protocol. He relied on the attorney-client privilege, the work-product doctrine, and the 

psychotherapist-patient privilege.

3

 ECF No. 1-1 at 3. 

Martino wholly failed to substantiate the first two privilege claims. See United 

States v. Fluitt, 99 F.4th 753, 763-64 (5th Cir. 2024) (noting the standards for 

3 The District Court held a hearing on Martino’s motions and provided an opportunity for 

supplemental briefing on these issues. 
7

establishing attorney-client and work-product privilege). He referred only generally to 

“multiple civil and criminal litigations” in which he appears to be proceeding pro se, and 

he failed to identify any specific legal material that might be subject to work-product 

privilege. ECF No. 7 at 2. And although Martino claimed that a smartphone seized by 

the Government contained text messages he exchanged with his psychotherapist, as well 

as audio recordings of some of their sessions, the District Court properly recognized that 

the patient-psychotherapy privilege is testimonial, not constitutional. See Jaffee v. 

Redmon, 518 U.S. 1, 9-10 (1996); United States v. Romo, 413 F.3d 1044, 1047 n.2 (9th 

Cir. 2005). Thus, a claim of privilege can be addressed if implicated at a future court 

proceeding. He therefore cannot demonstrate that he would be irreparably harmed absent 

a taint team. See United States v Squillacote, 221 F.3d 542, 560 (4th Cir. 2000) (holding 

that “suppression of evidence derived from the privileged conversations [between the 

defendant and her psychotherapist]” was not required “given that the privilege is a 

testimonial or evidentiary one, and not constitutionally-based”); cf. In re Search Warrant, 

942 F.3d at 172-75 (finding the defendant would be irreparably harmed absent injunctive 

relief preventing a Filter Team’s review of seized materials because of the role the 

attorney-client privilege plays in ensuring the Sixth Amendment right to effective 

assistance of counsel). Accordingly, there is no substantial question that the injunction 

motion was properly denied.4

 

4 To the extent we have jurisdiction to review the denial of Martino’s other motions, the 

appeal fails to present a substantial question. See 3d Cir. I.O.P. 10.
8

Based on the foregoing, we will dismiss the appeal to the extent that it pertains to 

the denial of the Rule 41(g) motion, and in all other respects we will summarily affirm 

the District Court’s judgment.