676 F2d 99 United States v. North American Coal Exchange

676 F.2d 99

UNITED STATES of America, Appellee,
v.
NORTH AMERICAN COAL EXCHANGE, Appellant.

No. 81-5228.

United States Court of Appeals,
Fourth Circuit.

Argued March 5, 1982.
Decided April 5, 1982.

Carl A. Parise, West Mufflin, Pa. (Gerald R. Robbins, Robbins & Werdig, P. C., Washington, D. C., on brief), for appellants.

Carolyn L. Gaines, Washington, D. C. (J. Alan Johnson, U. S. Atty., Paul J. Brysh, Asst. U. S. Atty., Pittsburgh, Pa., on brief), for appellee.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and KAUFMAN,* Chief District Judge.

HARRISON L. WINTER, Chief Judge:

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1

Larry Morris and North American Coal Exchange, Inc., a corporation owned solely by Morris, moved pursuant to Fed.R.Crim.P. 41(e) for the return of property seized from the offices of North American under a search warrant executed by postal inspectors. They also sought an injunction to restrain the government from using the seized evidence at any future hearing or trial. From denial of their motion, they appeal. We dismiss the appeal.

2

Orders denying a pretrial motion to suppress evidence are interlocutory and nonappealable. 28 U.S.C. § 1291. In DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) it was held that a preindictment motion is also nonappealable if it is in effect a motion to suppress evidence. Movants' prayer for injunctive relief makes it clear that their motion was in substance a motion to suppress evidence. It matters not that Larry Morris was not under indictment when the motion was filed since he was subsequently indicted in another district, nor that North American has never been indicted. See Parrish v. United States, 376 F.2d 601 (4 Cir. 1967). Although Parrish arose where a husband had been indicted prior to appeal but his wife had not, we held that the identity of interest between them was such that the wife's interest would be fully presented, considered and determined by her husband's motion to suppress which he could file in the court of indictment. Similarly, we think that North American's interest would be protected by motions filed by its sole stockholder, sole director and sole executive officer.

3

Our dismissal of the appeal is, of course, without prejudice to motions to suppress in the court having jurisdiction of the criminal case.

4

APPEAL DISMISSED.

*

Honorable Frank A. Kaufman, Chief Judge, United States District Court for the District of Maryland, sitting by designation