United States of America, Plaintiff-appellee, v. John Cosmo Prevatt and John H. Bennett, Jr., Defendants-appellants, 414 F.2d 239 (5th Cir. 1969)

This appeal is from the denial of appellant's Rule 41(e), Fed. R. Crim. P., motion to suppress evidence.¹  The issue involved is whether appellants' assertion of the Fifth Amendment's privilege against self-incrimination prohibits the use in state criminal actions of property obtained by federal agents pursuant to a federal statute subsequently held voidable in Marchetti v. United States, 1968, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 and Grosso v. United States, 1968, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906.²  We affirm the denial of appellants' motion and hold that resort to the federal judiciary to vindicate Fifth Amendment rights is inappropriate under the present circumstances.

The Rule 41 motion attempts to parallel the path of petitioners in Rea v. United States, 1956, 350 U.S. 214, 76 S. Ct. 292, 100 L. Ed. 233. That case, however, involved an exercise of the federal judiciary's supervisory power over federal officials who acted contrary to the Fourth Amendment. The instant case concerns lawfully seized evidence subsequently made unusable because of Fifth Amendment pressures. In terms of "poisonous tree" rhetoric, which appellants seek to engraft onto this case, this tree is simply not poisonous since the evidence was seized consonant with constitutional dictates.

Prevatt and Bennett's Fifth Amendment argument is also unpersuasive. The unconstitutional Fifth Amendment pressures placed upon appellants were eased when the district court dismissed the federal criminal charges. Marchetti and Grosso require no more. See 390 U.S. at 58-61, 88 S. Ct. 707-709. We must presume that further vindication of appellants' Fifth Amendment rights, if necessary, will come from the State courts. U.S.Const. Art. VI, § 1; 28 U.S.C. § 1257.³ 

Appellants also moved for a return of all seized property not the subject of an ancillary forfeiture proceeding [United States v. One Olivetti Underwood Electric Adding Machine, etc., No. 66-189 Orlando-Civil] currently on appeal to this Court [No. 26,987]. Appellants' counsel stipulated at the Rule 41 hearing that the seized property "was all lottery paraphanalia [sic]." Judge Young ruled that, since the property was contraband, appellants were not entitled to its return. It is not clear from the record where the property is currently located. If it is in the hands of State officials, as appellants "believe" it to be, then the question of its return may be moot. However, if it is within the reach of the federal court's jurisdiction, sound judicial administration requires that we withhold our decision upon its return until the Supreme Court disposes of the similar case of United States v. United States Coin and Currency, 7 Cir. 1968, 393 F.2d 499, cert. granted 393 U.S. 949, 89 S. Ct. 375, 21 L. Ed. 2d 361, calendared for reargument 395 U.S. 918, 89 S. Ct. 1768, 23 L. Ed. 2d 236 (May 26, 1969). In either case, the appellants cannot secure relief from this Court at this time. We therefore affirm the district court to the extent that it denied the motion to suppress. We further order that the parties submit affidavits to this Court and the district court demonstrating the whereabouts of the subject property. We retain jurisdiction over so much of the appeal as deals with the return of the property. 28 U.S.C. § 2106 (1964). See, e.g., Gaines v. Dougherty Co. Bd. of Education, 5 Cir. 1964, 329 F.2d 823, 824. Cf. Shively v. United States, 4 Cir. 1954, 210 F.2d 131, 132.