# Appendix — Bein v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0974%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 534 U.S. 943 ## Text 20 146'9 war 15 2001 OFFICE OF THE CLERK APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, ) -VS- WILLIAM BEIN and EASTER BEIN, Criminal No. 94-214 Defendants. AMBROSE, District Judge. ; FINDINGS OF FACT CONCLUSIONS OF LAW and ORDER OF COURT FINDINGS OF FACT 1. On October 3, 1994, Defendants William and Esther Bein (“the Beins”) were arrested by agents of the Federal Bureau Of Investigation (“FBI”), on warrants issued in connection with an indictment charging them with conspiracy and interstate transporta- tion of stolen property. 2. Following the filing of a superseding indictment, the Beins pled guilty to conspiracy to commit interstate transportation of stolen property and conspiracy to launder money. In Conjunction with the plea, the Beins agreed to cooperate with the Government in the prosecution of other individuals. 3. The current dispute arises from the execution of search warrants at the Beins’ residence and warehouse on the date of the arrest. Specifically, the Beins contend that certain items were seized and improperly destroyed. 4. At the sentencing hearing, this Court directed the Govern- ment to return all noncontraband items. The Beins were apparently 1 unsatisfied with the Government’s response and eventually filed the pending Motion for return of Seized Property (Docket No. 74). 5. This Court held evidentiary hearings on September 14, 1998, October 29, 1998, February 24, 1999 and April 16, 1999 regarding the seizure and destruction of the Beins’ property. (A) Execution of the Search Warrants 6. FBI and IRS agents, aided by a number of police officers from the Interstate Theft Task Force who were deputized as United States Marshals, executed the search warrants issued in conjunction with Operation ‘Fence Fry.” 7. Of the seven to eight search warrants issued, only three pertained to the Beins. 8. Three of the agents involved in the arrests and execution of the warrants, Agent Millar of the FBI, Agent Haefner of the IRS, and Detective Conn of the Pittsburgh Police, testified at the hearings. 9. Detective Conn testified that he arrived at the Beins’ residence and arrested Mrs. Bein. He searched her purse for a weapon, removed a few items such as business cards and telephone numbers, and then returned it to her. 10. Conn detained Mrs. Bein at the residence for a short period of time and then took her to the warehouse. Upon arrival, he used one of Mrs. Bein’s keys to gain access. - 11. Conn remained at the warehouse for approximately 2'/2 hours and aided in the seizure of health and beauty aids, and of shipping documents, bills of lading, and other business records. 12. Agent Haefner testified that she too participated in the execution of the search warrants, and that she was present at the Beins’ residence for a short period of time. 13. Agent Millar coordinated the execution of the warrants and of the arrests. 14. Government Exhibit 5 lists the items seized from the residence and Exhibit A to the Motion for Return of Seized Items lists the items seized from the warehouse. 2 (B) Transportation of Seized Items 15. Agents transported the goods from Cleveland, Ohio to Pittsburgh, Pennsylvania. The goods (health and beauty aids) were placed in a forfeiture lot maintained by the Pittsburgh Police Department. 16. Agent Millar testified that all of the documents seized pursuant to the search warrants, were tendered to Agent Haefner and were stored with the IRS. (C) Return of the Seized Items 17. Conn testified that a portion of the seized items were returned during pretrial preparation. Specifically, Conn explained that certain items which were determined not to be contraband were returned. 18. Agent Millar recalled that items were returned to the Beins, or to their counsel, on three occasions. 19. Millar testified that, approximately two months after the seizure, a variety of goods were returned because the Government could not determine that they were of a stolen nature. 20. Government Exhibit 1, which is an IRS receipt signed by Mrs. Bein dated December 14, 1994, confirms that a number of items were returned, including: makeup cases; hair items; office supplies; computer disks; toys; toasters; answering machines; desk lamps; pictures with frames; and Christmas items. 21. On March 13, 1995, Agent Haefner returned to Mr. Bein numerous items seized pursuant to the warrants, including: 2 videos; checks in the amount of $17.48, $2,566.24 and $50.00: and four Canadian Postal money orders. See Defendants’ Exhibit J. 22. On January 17, 1995, Agent Haefner of the IRS released to counsel for the Beins a copy Of “Jencks” material; copies of “purchase orders/invoices” seized pursuant to the warrants; and a number of computer equipment items. See Government Exhibits 2 and 4. 23. Finally, on November 20, 1996, $2,410.00 in cash seized pursuant to the warrants was returned. See Government Exhibit 3. (D) Destruction of Items 24. Detective Conn testified that various items seized during the execution of warrants on October 3, 1994 were destroyed between April 9th and April 11th, 1996. Conn explained that he was aware of the Court’s Order to return property, but understeod the Court to mean only that property which was not contraband. 25. I find that Conn’s interpretation is cons‘stent with this Court’s intention. Defendants’ Exnibit H is the Destruction Log of those items seized during Operation Fe:..< Fry and de- stroyed between April 9th and April 11, 1996. 26. The Destruction Log identifies the Beins as the source for those item seized pursuant to the warrants, and which are de- scribed as Bulky No. 1B-325 (stolen goods); Bulky No. 1B-331 (stolen goods); Bulky No. 1B-337 (stolen goods); and Bulky No. 1B-340 (documents). 27. The Beins culled information from the Inventory Log and the Destruction Log to ascertain what items allegedly had been improperly seized and destroyed. These items are listed in Defend- ants’ Exhibit A. 28. Exhibit A includes several items’ for which the Beins did not submit proposed findings of fact and conclusions of law. Accordingly, I find that the Beins have abandoned any claim for compensation relating to these items. 29. In the alternative, I find that the Beins failed to satisfy their burden of proof in establishing the existence, improper de- struction, and value of these items. 30. With respect to those items which are included in the proposed findings of fact and conclusions of law, I make the following findings: i.c., items “sold” to Steve Sykora; glass figurines; purse with money; library floor; closet shelves; dishes; Seiko directory; stocks; microfiche; Buyer’s guide from RSA; Zupan lease and video; “multipower 3” and “Transco” glue. 4 Goods “Sold” to Photaz, Brodt, Allou and K.I.D. International 31. The Beins contend that the Government improperly seized and destroyed documents relating to the sale of such items as disposable cameras, shampoo, toothpaste, and paper goods. 32. The Beins insist that the sale of these goods was legiti- mate, that the goods were not contraband, and that without the paperwork documenting the sales, they are unable to collect on the contracts. 33. According to the Beins, these contracts amount to $16,000. Although Detective Conn indicated that, in order to foster an air of legitimacy, individuals such as the Beins may sell noncontraband goods, there is simply no credible evidence to Suggest that these items were legitimate. 34. I accept, as credible, the testimony of the Government agents that, during extensive debriefing, the Beins never claimed to have engaged in legitimate sales with these entities. Furthermore, Mr. Bein even conceded at the hearing that approximately 80% to 90% of all of the goods which he sold to these companies were Contraband. 35. Even were I to accept the Beins’ representations as credible, which I do not, I find that the Government returned all of the appropriate documentation. Government agents testified, and Exhibits 2 and 4 reflect, that all invoices/purchase orders were returned to the Beins during pretrial proceedings. 36. As such, the Beins have not been deprived of the docu- ments which they claim to need. 37. Finally, and in the alternative, I find Mr. Bein’s allegations that they are unable to collect on the contracts to be wholly speculative. Mr. Bein acknowledged that he had not actually tried to collect. Instead, he merely predicts that, given his felony conviction, a trier of fact would not find his testimony to be credible. 38. 1 find this to be an insufficient effort to prove that the disputed amounts are, in fact, uncollectible. Gemachs 39. The Beins also demand compensation in the amount of $453,800 for the alleged destruction of documents referred to as ““gemachs.” 40. Testimony presented at the hearings established that Or- thodox Jews often lend money to various Jewish institutions. The gemachs are a series of checks or “IOUs” which identify the maker, the amount of money pledged to be redeemed on a certain date, and the payee. The Beins testified that the documents would have been written in Hebrew. 41. The Beins testified that they had possession of gemachs totaling $420,000, which were given to them by Mrs. Bein’s late uncle, and $33,500 of their own gemachs. 42. According to the Beins, they made multiple copies of the gemachs and placed them throughout the house. Without the gemachs, the Beins contend, they cannot collect on the loans. 43. I do not find any credible evidence to support the Beins’ contention that over $450,000 in gemachs were seized and destroyed. 44. The testimony elicited at the hearing established that Agent Haefner reviewed every document seized from the Bein residence. She testified that her purpose in reviewing the documents was to track any evidence of income to the Beins and that she would have recalled seeing any loan documentation of this nature. She further represented that she did not recall seeing any documents containing the word “gemach,” and that she did not recall seeing multiple copies of the same documents. 45. I find Haefner’s testimony to be credible and conclude that the Government did not improperly seize and destroy the alleged documents. 46. In the alternative, I find that even if the Government seized and improperly destroyed the gemachs, the Beins have not estab- lished that the destruction of the documents precludes them from collecting on the loans. 47. For instance, neither of the Defendants testified that an institution refused to honor a !oan. 6 48. Nor did the Defendants proffer any evidence indicating that they took steps to ascertain which institutions received loans. Indeed, all the Beins did was claim, without any supporting documentation, that the attorney representing Mrs. Bein’s late uncle suffers from Alzheimers, and is unable to help gather this information. 49. I decline to give credence to such bald, unsupported assertions. Warehouse Merchandise 50. According to the Beins, the Government improperly seized and destroyed $16,000 worth of merchandise located in the warehouse. The merchandise allegedly consisted of toothbrushes, soaps, toothpaste, Revlon items and G.E. lightbulbs. 51. The Beins contend that Defendants’ Exhibit I, a letter to counsel for the defense from Jeffrey Killeen of the FBI, acknowl- edges that such items were destroyed. 52. I disagree. The letter indicates only that toothbrushes were destroyed, but denies all other allegations. I reject the Beins’ assertion that the toothbrushes were legitimate goods. 53. Agent Millar conceded that he never knew the Beins to be involved with stolen toothbrushes. Yet he opined that, given his years of experience, he believed the toothbrushes were stolen. He explained that the toothbrushes had various retail stickers on them and that this was consistent with stolen merchandise. 54. I find Agent Millar’s testimony to be credible. 55. As to the Revion items, I find that all of the seized Revion products and other items were returned to the Beins on Decem- ber 14, 1994 as evidence by Government Exhibits 2 and 4. Carts 56. The Beins claim entitlement to $1,500 for the destruction of 6 carts valued at $250.00 a piece. The Government agrees that five of the six carts were improperly destroyed and that the sixth cart should be returned. See Docket No. 94, p. 21. 7 57. I find Mr. Bein’s testimony as to the value of the carts to be credible and further find that the loss attributable to the destruc- tion of the carts to be reasonable. I also find that the Beins are entitled to the return of the remaining cart. Photographs 58. According to the Beins, the Government seized and de- stroyed numerous wedding and family photographs. They claim to have had numerous photographs spread out on a ping pong table in the basement. They explained that they were using them in prepar- ing a gift for their son. 59. While the Inventory Log does note that “miscellaneous photographs” were found in a closet in the hall, there are no entries indicating that photographs were taken from a ping pong table. 60. Furthermore, each agent testified that they did not recall seeing a large number of wedding or family photographs. Agent Haefner specifically testified that she would have recalled seeing any. 61. I accept this testimony as credible. 62. Finally, the FBI report memorializing those items de- stroyed reflects only that photographs gathered pursuant to the Spelic search warrant were destroyed. 63. Consequently, I find that the Government did not improp- erly seize and/or destroy a large number of wedding and family photographs. Keys 64. The Beins claim, and the Government concedes, that the Government improperly destroyed several keys. 65. Mr. Bein testified that he spent approximately $300 re- placing locks and keys for their residence, warehouse and cars. 66. Although the Government urges that there is no credible evidence regarding the value of the keys, I find Mr. Bein’s testi- mony to be credible. Memorabilia 67. The Beins also claim to have had 10-15 copies each of more than 17 letters written in Hebrew from noted rabbinical scholars and/or famous Orthodox Jews. 68. According to Mr. Bein, many of these letters were ad- dressed to either his wife or him, or to their parents. 69. The Beins presented expert testimony valuing these items collectively at $40,000. The expert had never seen the letters, and relied solely upon the Beins’ representations concerning the exis- tence, the condition, the author, the content, and the age of the letters. 70. The Beins charge the Government with improperly seizing and destroying these letters. 71. I find the Beins testimony to lack credibility in this regard. 72. As stated above, I accept Agent Haefner’s testimony as credible. Agent Haefner testified that she did not see any documents which had been copied i0 to 15 times. 73. Moreover, Haefner explained that she saw only a few “Jewish documents” and that she had a fellow agent translate them for her. She then understood them to be referring to a “Heter Iskah” - which is apparently some type of loan (other than a gemach). There is no indication that the documents were personal letters. Briefcases 74. The Beins also claim that two briefcases were seized and improperly destroyed. The Government acknowledges the same. Thus, I find that the Government improperly seized and destroyed two leather briefcases. 75. 1 do not, however, accept as credible the Defendants’ contention that the briefcases were worth $600. First, the Defend- ants did not direct this Court to any portion of the record in which a witness stated that the briefcases were worth $600. Second, Mr. Bein testified that he received one briefcase as a gift in 1974 or 1975, and that he received the other in 1981 or 1982. 9 76. I find it entirely too speculative to conclude that two briefcases which were approximately 20 years old were worth $600. Lawsuit — Woodhill Supply 77. The Beins were allegedly involved in a legal dispute with a contractor who had done some work on their home. 78. As a result of the alleged seizure and improper destruction of documents and a video detailing the home repairs, the Beins contend, they were unable to produce checks and invoices docu- menting payment of disputed claims, and incurred $15,000 worth of loss. : 79. I agree that entries F44-46 on the Inventory Log suggest that the documents pertaining to a lien were seized, but I do not see any indication that videos were taken. 80. Yet even if I were to accept as credible the Beins’ assertions that such documents were destroyed, there exists no credible evidence upon which to base the conclusion that the destruction cost the Beins $15,000 in losses. For instance, the Beins did not produce a copy of the lien. Nor did they produce a copy of the judgment. 81. Simply stated, there is no independent evidence support- ing their contention that the loss was $15,000. 82. Furthermore, there is no evidence other than Mr. Bein’s bald assertion, that any loss should have been placed upon the contractor. 83. I acknowledge that the invoices which were allegedly destroyed would have been the most obvious means of proof that the Beins had paid the contractor, but I also believe that the Beins could have proffered copies of their bank records which would reflect that certain checks were paid, or that cash in the amount of a disputed payment was withdrawn on a particular clay. It does not appear that they made any such efforts before the Ohio court. 84. In sum, I find the Beins’ assertion of a loss caused by the destruction of the documents to lack credibility, and that the record 10 ee is devoid of any reliable evidence regarding the amount of any such loss, or responsibility for the loss. Computer Programs 85. The Beins complain, and the Government agrees, that agents improperly destroyed computer diskettes. Although the Government does not concede as much, the Beins contend that between 500 and 600 diskettes were destroyed. 86. According to the Beins, the diskettes were program disket- tes, such as “Windows” and children’s games, rather than data diskettes. 87. Prior to the execution of the search warrants, Mr. Bein claimed, he had been able to use certain information from the existing diskettes to purchase updates for many of the programs, Because the diskettes have since been destroyed, he no longer has the option of buying program updates, but must buy new programs themselves. 88. Mr. Beins estimated that replacing all of the seized programs diskettes would cost approximate $6,000.00. 89. I find this testimony to be incredible. The $6,000 estimate is wholly speculative. Mr. Bein was able to recall only a few programs and made absolutely no effort to supply any sort of basis for his claimed loss. Certainly the Defendants could have brought in price lists from a computer store or something of that nature. 90. Furthermore, based upon Mr. Bein’s own testimony, he need not replace 500-600 diskettes. Rather, at least some portion of the diskettes were mere “updates,” the replacement of which are unnecessary. 91. As it stands, I find a sum as large as $6,000, for which the Defendants offer no specificity regarding the nature and type of program diskettes destroyed, the number of diskettes to be replaced, or even any corroborating proof as to replacement cost, to be wholly speculative and unreasonable. 11 Pe ee Airline Ticket 92. Mr. Bein also claimed that Mrs. Bein’s airline ticket to Israel] was lost. According to Mr. Bein, the agents seized the ticket and failed to return it. He further contends that because they were unable to recall the flight information and/or provide a doctor’s excuse for not traveling, Delta would not refund the purchase price of the ticket. 93. The Inventory Log seflects only that airline “information” was taken. See Government Ex. 5, Line 03. There is no indication that an actual ticket was taken. 94. I find the Beins’ assertions to the contrary to be incredible. 95. Furthermore, I have difficulty accepting the implicit con- tention that Mrs. Bein could not recall at least the dates upon which she traveled, or that the Beins could not reproduce a credit card statement or canceled check confirming that they had paid for a ticket. 96. Neither did the Beins offer any written documentation supporting Delta’s alleged refusal to refund the price, or of Delta’s fequirement that Mrs. Bein provide a doctor’s excuse. 97. In short, I find the Beins’ assertions in this regard to lack credibility. Important Papers and invitations 98. The Beins argue that the Government destroyed important personal papers such as diplomas, marriage documents, ordination certification, and invitations to a wedding and a bar mitzvah. 99. I do not find the Beins’ testimony regarding the existence and destruction of personal papers, other than the invitations as detailed below, to be worthy of credence. There is no indication in the Inventory Log that such items were taken, nor did any agent testify to seeing such items. 100. However, the Inventory Log does contain two entries for “invitations.”’ Additionally, Agent Millar testified that he recalled seeing bar mitzvah invitations, which he further believed had been marked as destroyed. 12 101. Mr. Bein testified that the actual cost of the wedding invitations was $200. I find his testimony in this regard to be credible, and that the sum of $200 is reasonable. 102. Although there is no evidence of the cost of the bar mitzvah invitations, I find it reasonable to presume that they also cost approximately $200.00. Fax Machine 103. The Beins also claim that a new fax machine was improperly seized and destroyed. The Government does not dispute this contention. 104. Mr. Bein testified that the machine was brand new, and cost approximately $500.00. The Government did not offer any evidence controverting this amount. 105. I find Mr. Bein’s testimony as to the cost to be credible, and the sum of $500 to be reasonable. Lucas-Tenant 106. Finally, the Beins claim that the Government improperly destroyed documents relating to repairs on property in Canada. Specifically, the Beins urge that, lacking appropriate documenta- tion, they were unable to persuade their insurance carrier that they bore no responsibility for certain losses incurred by their tenants. As a result, their insurance premiums increased by $2,000 a year. 107. I find that the Beins’ claim is far too speculative to award compensation. For instance, they did not tender any proof of what they pay for insurance, or that their premiums increased by $2,000. 108. Furthermore, as to the underlying matter, the Beins did not provide any details of the nature of the dispute, the amount in controversy, or an explanation of what the documents consisted of or why they would have ensured their success. 109. I am left simply with Mr. Bein’s bald, conclusory, and unsupported allegations, which I find to be incredible. 13 CONCLUSIONS OF LAW 1. “‘The general rule is that seized property other than contra- band, should be returned to its rightful owner once the criminal proceedings have terminated.” United States v. Brant, 684 F. Supp. 421, 423 (M.D. N.C. 1988), aff'd, 865 F.2d 1260 (4th Cir. 1988), quoting, United States v. La Fatch, 565 F.2d 81, 83 (6th Cir. 1977), cert. denied, 435 U.S. 971 (1978). 2. Indeed, I have “‘both the jurisdiction and the duty to ensure the return to a defendant of ‘that property seized from him in the investigation but which is not ...stolen, contraband, or otherwise forfeitable, and which is not needed, or is no longer needed, as evidence.’ ’ Brant, 684 F. Supp. at 424, quoting, United States v. Wilson, 540 F.2d 1100, 1101 D.C. Cir. 1976). 3. By seizing the property pursuant to valid search warrants, I conclude that the Government has met its burden of establishing the reasonableness of the search. See Otonye v. United States, 903 F. Supp. 357, 363-64 n. 8 (E.D. N.Y. 1995). 4. The Beins thus bear the burden of prov.ng “the extent and value of [the] claimed property....” Otonye, 903 F. Supp. at 364 n. 8. 5. As set forth in the Findings of Fact, the Beins did not Satisfy the burden of proving the existence of the following items: the gemachs; rabbinical letters; personal items; noncontraband items; photographs; the lawsuit; ticket to Israel; the increase in insurance premiums; items “‘sold” to Steve Sykora; glass figurines; purse containing money; library floor; closet shelves; dishes; Seiko directory; stocks; microfiche; Buyer’s Guide from RSA; Zupan lease and video; “multipower 3”; and “Traco” glue. 6. Nor did the Beins satisfy their burden of proof regarding the value of: the briefcases and the computer diskettes. 7. Consequently, the Government does not have any obliga- tion with respect to these items. 8. The Beins’ inclusion of these items in the pending Motion did not, however, constitute fraud, unconscionability or bad faith. 9. As such, the clean hands doctrine does not preclude them from seeking equitable relief for the remaining items. is 10. The Beins did meet their burden of proving the existence and value of the following items: six carts; keys; invitations; and fax machine. 11. Because the Government still retains possession of one of the carts, I conclude that it must return it to the Beins. 12. It is undisputed that the Government no longer has the remaining items, and thus cannot return them. 13. In response to the Beins’ request for compensatory dam- ages, the Government contends that this Court lacks the requisite jurisdiction. 14. I disagree. “Post conviction filings for the return of property seized in connection with a criminal case are treated 25 civil equitable actions, and the district couft where the claimant was tried has subject-matter jurisdiction ancillary to its criminal juris- diction to hear the equitable action.” Thompson v. Covington, 47 F.3d 874, 875 (8th Cir. 1995), citing, Rufu v. United States, 20 F.3d 62, 65 (2d Cir. 1994) (per curiam) (district court where defendant tried has ancillary jurisdiction to decide post-trial motion for return of property; motion treated as civil complaint for equitable relief and court must make findings tu identify items government still possesses, and then fashion relief); and Mora v. United States, 955 F.2d 156,158-59 (2d Cir. 1992 (same). 15. As did the court in United States v. Martinson, 809 F.2d 1364, 1368 (9th Cir. 1987), I recognize “that there are cases holding that damages are unavailable in a proceeding based on a motion for return of property.” See also Otonye v. United States, 903 F. Supp. 357, 360-61 (E.D. N.Y. 1995) (citations omitted). 16. Yet, I too “find these reasons unpersuasive in light of the equitable powers of the court. When a citizen has invoked the jurisdiction of a court by moving for return of his property, [I] do not think that the government should be able to destroy jurisdiction by its own conduct.” Martinson, 809 F.2d at 1368. 17. “The government should not at one stroke be able to deprive the citizen of a remedy and render powerless the court that could grant the remedy.” /d. 15 18. Here, as detailed in the Findings of Fact, the Government destroyed the property at issue after this Court ordered its return. Consequently, I conclude that I have ancillary jurisdiction to award damages. 19. The Beins satisfied their burden in proving the following values, all of which I find reasonable and appropriate, and I conclude that the Government is obligated to tender to the Beins the following amounts: Carts $1,250; keys $300; Invitations $400; and fax machine $500 for a total of $2,450.00. FR I ek ka ak a koe a og ae ak ak DATE FILED: JULY 7, 1999 GOVERNMENT’S COUNSEL: U.S. ATTORNEY’S OFFICE ATTN: SHAWN SWEENEY, ESQ., AUSA 633 U.S. POST OFFICE & COURTHOUSE PITTSBURGH PA 15219-1906 DEFENDANTS’ COUNSEL: STANLEY GRFUNFIELD ESQ 1035 FIFTH AVE PITTSBURGH PA 15219 16 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, ) -VS- WILLIAM BEIN and EASTER BEIN, ( Criminal No. 94-214 Defendants. AMBROSE, District Judge. ; ORDER OF COURT AND NOW, this this _ th day of July, 1999, for the reasons set forth in the accompanying Findings of Fact and Conclusions of Law, the Motion for Return of Seized Property (Docket No. 74) is granted in part and denied in part. It is GRDERED that the Motion is GRANTED insofar as the Government is required to return the remaining cart, and tender the following amounts: $1,250 (carts); $300 (keys); $400 (invitations); and $500 (fax machine). The Motion is DENIED in all other respects. BY THE COURT: /s/ Donetta W. Ambrose Donetta W. Ambrose, U. S. District Judge IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, ) Vv. WILLIAM BEIN and ESTHER BEIN, > Criminal No. 94-214 Defendants. AMBROSE, District Judge. MOTION TO AMEND AND/OR ALTER JUDGMENT PURSUANT TO F.R.C.P. 59(e) 19. The Beins object to this finding only to the extent it provides a value of only $400.00 for invitations based on the actual cost of printing, and nothing for sentimental value, and provides nothing for other items claimed to have been destroyed. In all other respects it has no objection to Conclusions of Law 19. GREENFLELD, BREWER, BAILOR & KAY /s/ Stanley W. Greenfield, Esquire Stanley W. Greenfield, Esquire PA I.D. No. 00622 Attorney for William and Esther enon 1035 Fifth Avenue Pittsburgh, PA 15219 (412) 261-4466 8/18/99 After careful consideration of the parties’ submissions, the Motion to Amend and/or Alter Judgment (Doc. No. 101) is denied. Donetta W. Ambrose 18 eee eH Me eter nan nee UNITED STATES OF AMERICA v. ESTHER BEIN and WILLIAM BEIN, Appellants. No. 99-3822 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 214 F.3d 408; 2000 U.S. App. LEXIS 12234 May 9, 2000, Argued June 5, 2000, Filed PRIOR HISTORY: [** 1] On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Crim. No. 94-214). District Judge: Hon. Donetta W. Ambrose. DISPOSITION: Order of district court entered July 9, 1999 vacated and remanded. Order of August 18, 1999, affirmed. Case remanded to district court for entry of an order in accordance with this opinion. COUNSEL: Stanley W. Greenfield (argued), Daniel J. Kraut, Greenfield, Brewer & Kay, Pittsburgh, PA, Attorneys for Appellants. Harry Litman, United States Attorney, Bonnie R. Schlueter (argued), Assistant United States Attorney, Pittsburgh, PA, Attorney for Appellee. JUDGES: Before: GREENBERG, McKEE, and GARTH, Circuit Judges. ' OPINIONBY: GREENBERG OPINION: [*410] OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter is before this court on an appeal by Esther and William Bein from an order of the district court entered August 18, 1999, denying their motion to amend or alter an order entered July 9, 1999, denying in part their motion pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure for return of property. The Beins, alleging the Government wrongfully had destroyed or failed to return their property, filed their Rule 41(e) [**2] motion to 19 recover compensatory damages or the return of the property. The district court granted the motion in part, awarding damages in the amount of $2,450, and ordering the Government to return a cart in its possession. The court, however, denied the Beins’ motion with respect to their claim for losses of other property. The Beins appeal, seeking additional damages. Although the Government has not appealed, it asserts, as it did in the district court, that the court did not have jurisdiction to entertain the Beins’ Rule 41(e) motion to the extent that it sought compensatory damages. Because we find that sovereign immunity bars a claim against the Government seeking money damages under Rule 41(e), we will vacate the order of the district court entered July 9, 1999, insofar as it awarded damages. We do not, however, disturb the order with respect to the return of the cart. Inasmuch as the district court did not have jurisdiction to award damages, we do not consider on the merits the arguments the Beins raise as they advance them only in an attempt to recover additional damages. Thus, we will affirm the order of August 1%, 1999, denying the Beins’ motion to amend the order of July 9, 1999. [**3] This matter arises out of the investigation and arrest of the Beins and their subsequent prosecution in the district court. On October 3, 1994, agents of the Federal Bureau of Investigation arrested the Beins who then were charged with conspiracy and interstate transportation of stolen merchandise. Following the filing of a superseding indictment, the Beins pleaded guilty to conspiracy to commit interstate transportation of stolen property and conspir- acy to launder money. At the time of the Beins’ arrest, the Government executed search warrants at their home and at their wholesale toiletries and pharmaceutical products business.' The Government maintained an inventory of all items that were seized. See app. at 9-25. At the Beins’ sentencing hearing, the court directed the Government to return all non-contraband items to the Beins. ' FBI, Internal Revenue Service agents and a number of local police officers who were deputized as United States Marshals executed the warrants as part of an investigation called Operation “Fence Fry.” The Pittsburgh Police Department placed the goods seized from the Beins in a forfeiture lot it maintained. The IRS stored all documents seized. 20 There is no dispute that the Government returned certain items to the Beins. Nevertheless, the Beins filed their motion pursuant to Fed. R. Civ. P. 41(e) as they asserted that the Government did not return many items seized and instead destroyed them. Conse- quently, in their Rule 41(e) motion the Beins largely sought to recover monetary damages to compensate them for their loss. Indeed, the Beins acknowledge that the Government told them before they filed their Rule 41(e) motion that the property it had not returned had been destroyed. The Beins alleged in particular that the Government improp- erly had destroyed (1) documentation of goods sold to certain entities, (2) gemachs,’ (3) certain warehouse merchandise, (4) six carts, (5) photographs, (6) keys, (7) memorabilia, (8) two brief- cases, [*411] (9) documents related to a particular lawsuit, (10) computer programs, (11) an airline ticket, (12) certain impor- tant papers and invitations, (13) a fax machine, and (14) documents relating to the repair of a property in Canada the Beins owned. As we have indicated, the district court determined that the Govern- ment retained in its possession one of the six carts for which the Beins sought damages [**5] and ordered its return, a matter not in issue On this appeal. The court further determined that the Govern- ment wrongfully had destroyed five carts, the keys, a fax machine and wedding and bar mitzvah invitations. Inamsuch as the Govern- ment could not return these items, the court awarded the Beins $2,450 in damages to compensate them for their loss. The district court found, however, that the Beins had not established that the Government took possession of the remaining property or had not presented adequate proof of damages for its loss. The Beins have appealed from the order of the district court to the extent it denied their Rule 41(e) motion seeking damages for this remaining prop- erty. We have jurisdiction over their appeal pursuant to 28 U.S.C. §1291. * A gemach is a promissory note representing a loan made to a charitable Organization. The loan is repaid at an agreed upon date by either the borrower or a third party makifg~payment on behalf of the borrower. The gemach is considered under Orthodox Jewish Law to be a high form of charity because the repayment relieves the recipient of any feeling of obligation to the donor. See App. at 231-35. II. DISCUSSION It is well settled that the Government may seize evidence for use in investigation and trial, but that it must return the property once the criminal proceedings have concluded, unless it is contra- band or subject to forfeiture. See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999); see also United States v. Premises Known as 608 Taylor Ave., Apartment 302, 584 F.2d 1297, 1302 (3d Cir. 1978); United States v. Wilson, 176 U.S. App. D.C. 321, 540 F.2d 1100, 1103 (D.C. Cir. 1976) (district court has both the jurisdiction and duty to return property against which no govern- ment claim lies). A person aggrieved by the deprivation of property may file a motion under Rule 41(e) to request its return. See Chambers, 192 F.3d at 376; Government of Virgin Islands v. Edwards, 903 F.2d 267, 273 (3d Cir. 1990). A district court has jurisdiction to entertain a motion for return of property even after the termination of criminal proceedings against the defendant and such an action is treated as a civil proceeding for equitable relief. See United States v. McGlory, 202 F.3d 664, 670 (3d Cir. 2000) (en [**7] banc); Chambers, 192 F.3d at 376-77 (citing United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987); Rufu v. United States, 20 F.3d 63, 65 (2d Cir. 1994); Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995)). Further, even if it is alleged that the property the movant seeks to have returned is no longer within the Government's possession, the district court has jurisdiction to determine whether such property had been in its possession and whether it wrongfully disposed of such property. See Chambers, 192 F.3d at 378. The Beins filed their Rule 41(e) motion primarily seeking not the return of their property, but rather compensatory damages for property they alleged the Government wrongfully destroyed. The Government asserts the district court did not have subject matter jurisdiction to address such a claim under Rule 41(e).’ For [*412] * The Government also asserts that the Beins’ appeal was not timely. See Appellee Br. at 1-3. The Government argues that, because Rule 41(e) is a rule of criminal procedure, the time for appeal should be ten days, as opposed to the 60 days that would be allowed for a civil appeal in a case in which it is a party. See id. As noted by the Government, those courts that have addressed the issue have held that because Rule 41(e) motions filed after the conclusion of criminal proceed- ings are treated as civil proceedings in equity, the time period for filing a notice 22 the reasons set forth below, we find that, as a result of the Government's immunity from suit, the district court lacked subject matter jurisdiction over the Beins’ claims for monetary damages. While the Government has not appealed from the order entered in the district court, it asserts that, based upon its sovereign immunity, the district court did not have jurisdiction to enter a claim for monetary damages as relief on a Rule 41(e) motion. See Appellee Br. at 4-6. But the Government need not have appealed formally from the order of the district court for us to consider this issue as a claim of sovereign immunity advances a jurisdictional bar which a party may raise at any time, even on appeal, and which the court may raise sua sponte. See Brown v. Secretary of the Army, 316 U.S. App. D.C. 284, 78 F.3d 645, 648 (D.C. Cir. 1996); see also United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514, 60 S. Ct. 653, 657, 84 L. Ed. 894 (1940) (“Consent alone gives jurisdiction to adjudicate against a sovereign. Absent that consent, the attempted exercise of judicial power is void.”). It is a fundamental principle of sovereign immunity that federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States’ immunity to suit. See United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 2965, 77 L. Ed. 2d 580 (1983). [**9] Moreover, when the Government does consent to be sued, “the terms of [the] waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841, 106 S. Ct. 2224, 2229, 90 L. Ed. 2d 841 (1986). “Waivers of the Government’s sovereign immunity, to be effective, of appeal in civil cases should be applied for the sake of simplicity and clarity. See id. at 3 (citing United States v. Madden, 95 F.3d 38, 39 n.1 (10th Cir. 1996); United States v. Garcia, 65 F.3d 17, 18 n.2 (4th Cir. 1995); Hunt v. U.S. Dep’t of Justice, 2 F.3d 96 (Sth Cir. 1993); United States v. Taylor, 975 F.2d 402, 403 (7th Cir. 1992); Martinson, 809 F.2d at 1367). While we have not addressed this issue, we do not find any compelling reason to part from the consensus that appears to have arisen among those courts that have done so. Accordingly, we find that the time for appeal applicable to civil actions should apply in the context of an appeal from a post-conviction decision on a Rule 41(e) motion and thus, as the Beins appealed within 60 days of August 18, 1999, their appeal is timely. Of course, we do not consider whether a Rule 41(e) motion made during the pendency of the criminal proceedings should be treated as a civil proceeding for purposes of calculating the time for appeal as that issue is not before us. 23 must be ‘unequivocally expressed,’ ‘ and any such waiver must be construed strictly in favor of the sovereign. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011, 1014-15, 117 L. Ed. 2d 181 (1992). As we have indicated, we are concerned with Fed. R. Crim. P. 4 1(e) which reads: Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the [** 10] property in subsequent 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. Inasmuch as Rule 41(e) motions are treated as civil equitable actions, see n.3, supra, in light of its equitable powers the district court concluded that it had ancillary jurisdiction to award damages to the Beins and against the United States. Unquestionably the district court had reason to believe that it could award damages as some courts have suggested that a court under Rule 41(e) “has power to award damages incident to the complaint.” United States v. Martinson, 809 F.2d at 1367-68; see also United States v. Kanasco, Ltd., 123 F.3d 209, 210 n.1 (4th Cir. 1997); Mora v. United States, 955 F.2d 156, 159-60 (2d Cir. 1992). Other courts, however, have disagreed with this approach. [*413] See, e.g., Pena v. United States, 157 F.3d 984, 986 (Sth Cir. 1998); United States v. Chambers, 92 F. Supp. 2d 396, 2000 WL 369786, at *3-6 (D.N.J. 2000). We seem never to have made a definitive [**11] ruling on the point and thus we make our own analysis of the issue. Soveicign immunity protects the Government from suit except insofar as it has waived that immunity. A waiver must be expressed 24 s unequivocally in statutory text and will not be implied. See Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 2096, 135 L. Ed. 2d 486 (1996) (citations omitted). Rule 41(e), however, does not expressly authorize an award of monetary damages and thus a_court’s jurisdiction to award damages pursuant to that rule is questionable. Notwithstanding the absence of an express provision in Rule 41(e) authorizing an award of damages, the Court of Appeals for the Ninth Circuit has stated that this omission is not controlling with respect to the availability of damages under that rule. Thus, in Martinson it indicated: When a citizen has invoked the jurisdiction of a court by moving for return of his property, we do not think that the government should be able to destroy jurisdiction by its own conduct. The government should not at one stroke be able to deprive a citizen of a remedy and render powerless the court that could grant the rernedy. Martinson, 809 F.2d at 1368. [**12] The court feared that if it allowed the Government to moot a motion for return of property by giving the property away or destroying it, it would be encouraging the United States to undertake unilateral actions which would have the effect of circumventing the judicial process. See id. While we respect this policy argument, it overlooks the fact that a determina- tion of whether Rule 41(e) authorizes an award of damages raises a question not of mootness, but of jurisdiction. Moreover, application of sovereign immunity, by its very nature, will leave a person wronged by Government conduct without recourse. Indeed, a more recent decision of the Court of Appeals for the Ninth Circuit appears to be contrary to its reasoning in Martinson to the extent it held that a district court has jurisdiction to award monetary damages despite the fact that Rule 41(€) does not expressly provide for such an award. In United States v. Woodley, the court considered the question of whether a court could impose a monetary sanction on the United States under the Federal Rules of Criminal Procedure. See 9 F.3d 774 (9th Cir. 1993). Fed. R. Crim. P. 16(d)(2) provides a court with the authority to [**13] “prescribe such terms and conditions as are just” to remedy a violation of a discovery order. See id. at 782 (quoting Rule 16 (d)(2)). The court found that because Rule 16(d)(2) did not include independent 25 authority for a monetary sanction it would decline to recognize that the rule waived sovereign immunity. Accordingly, the sanction could not be imposed. See id. at 781. It seems to us that this conclusion is at odds with the result in Martinson. Moreover, Rule 16(d)(2) is broader than Rule 41(e) in that Rule 16fd)(2) allows a court to prescribe such terms and conditions as are just, whereas Rule 41(e), even though proceedings under it are treated as general equitable actions, only provides for one express remedy — the return of property. After careful analysis we reject the cases which allow an award of damages in a proceeding under Rule 41(e) as we conclude that a Federal Rule of Criminal Procedure that does not expressly provide for an award of monetary damages does not waive sover- eign immunity. n4 [*414] We find the reasoning of the Court of Appeals for the Fifth Circuit in Pena and of the United States District Court for the District of New Jersey in Chambers [**14] to be persuasive on this point. The court in Pena reasoned as follows: Pena has named the United States as the defendant in his case. The principle of sovereign immunity protects the federal government from suit except insofar as that immunity is waived. A waiver must be unequivocally expressed in statutory text and will not be implied. See Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 2096, 135 L. Ed. 2d 486 (1996) (citations omitted). Rule 41(e) makes no provision for mone- tary damages, and we will not read into the statute a waiver of the federal government’s immunity from such damages. Nu- merous Supreme Court decisions hold that courts should construe statutes against waiver unless Congress has explicitly provided for it. See, e.g., Lane, 116 S. Ct. at 2097 (refusing to allow monetary damages under §504(a) of the Rehabilitation Act of 1973, 29 U.S.C. §791 et seq., where the relevant ™ The case law suggests that sovereign immunity may be waived only by a clear statutory expression of waiver; legislative history will not suffice to operate as a waiver. See United States v. Nordic Village, Inc., 503 U.S. at 37, 112 S. Ct. at 1016. Given our holding in this case, however, we need not address the broader question of whether rules of procedure, standing alone, can be found to constitute a waiver of sovereign immunity. 26 statutory provisions failed to provide the ‘clarity of expression necessary to establish a waiver of the Government’s sovereign immunity against monetary damages’); United States v. Nor- dic Village, Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011, 1014- 15, 117 L. Ed. 2d 181 (1992) [**15) (holding that although the contemporary §106(c) of the Bankruptcy Code waived sover- eign immunity, ‘it failed to establish unambiguously that the waiver extended to monetary claims’). However compelling his case, Pena may not maintain a suit against the United States for monetary damages under Rule 41(e). Pena, 157 F.3d at 986. The district court in Chambers agreed. See Chambers, 2000 WL 369786 at *3. In this case the district court appeared to have assumed, and the Beins have argued, that because the courts have construed Rule 41(e) to (**16] grant a district court the power to award certain equitable relief, the court had jurisdiction to award complete relief, which in certain circumstances could include an award of monetary damages. While this line of reasoning may have merit in analogous situations with respect to a non-governmental entity, it does not properly address the sovereign immunity claim raised by the Government. In fact, the Supreme Court has found that the waiver of sovereign immunity does not extend beyond the express terms of the waiver. See Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 119 S. Ct. 687, 142 L. Ed. 2d 718 (1999). In Blue Fox the respondent sued the Army under section 702 of the Administrative Procedures Act, which provides in relevant part: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall [**17] not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 27 Id. at 260, 119 S. Ct. at 691 (citing 5 U.S.C. §702). The respondent asked the Court to find that the provision waiving sovereign immunity from actions seeking relief other than money damages would allow it to seek a lien on funds held by the United States. See id. The court of appeals in Blue Fox had read an earlier decision of the Supreme Court as standing for the proposition that section 702’s reference to “‘other than money damages” constituted a waiver of sovereign immunity as to all actions equitable in nature. See id. at 261, 119 S. Ct. at 691. The Supreme Court disagreed, finding that the waiver of sovereign immunity must be found in the language of the statute, [*415] and thus proceeded to determine whether the relief sought by respondents constituted money dam- ages. See id. at 261-62, 119 S. Ct. at 691-92. The Court held that the imposition of the equitable lien sought by respondent was in fact a claim for money damages outside the waiver of sovereign immunity. See id. at 263, 119 S. Ct. at 692. [**18] In keeping with the reasoning of Blue Fox, to the extent a court may read Rule 41(e) as a waiver of sovereign immunity, it must limit the waiver to the express terms of the rule. We reiterate that Rule 41(e) provides for one specific remedy — the return of property. Although courts treat a motion pursuant 'o Rule 41(e) as a civil equitable action, such a characterization cannot serve as the basis for subjecting the United States to all forms of equitable relief. A court must strictly construe the scope of a waiver of sovereign immunity in favor of the sovereign. See Blue Fox, 525 U.S. at 261, 119 S. Ct. at 691. The interpretation of Rule 41(e) urged by the Beins would apply a liberal construction of the scope of a waiver of sovereign !mmunity. Consequently, we conclude that the district court erred wnen it exercised subject matter jurisdiction over the Beins’ claims for monetary damages. Therefore we will vacate the order of the district court of July 9, 1999, to the extent it awarded the Beins monetary damages and we will remand the matter to the district court to dismiss the' Rule 41(e) motion, to the extent that it sought monetary damages for lack of subject matter [**19] jurisdiction. We believe our conclusion is buttressed by a review of the specific instance under the Federal Tort Claim Act (““FTCA”’) in which the Government has waived sovereign immunity in actions 28 seeking damages for loss or damage to property. We refer to that waiver not to suggest that any particular remedy is, or was, available in this case, or would be available in future cases involving seizure of evidence in criminal matters, but rather to illustrate the manner in which a Rule 41(e) action for damages could undermine the limitations set forth on the waiver of sovereign immunity in property loss or damages cases. While the FTCA waives sovereign immunity for certain claims for money damages, that waiver is subject to several limitations. See, e.g., 28 U.S.C. 1346(b)(1) (providing jurisdiction in the district courts for claims for money damages resulting from injury to, or loss of, property caused by the negligence of a Government employee). As particularly germane here, the waiver in section 1346(b) does not extend to any claim “arising in respect. . . of the detention of goods or merchandise by any officer of customs or excise or any other law-enforcement [* *20] officer.” 28 U.S.C. §2680(c). The courts have interpreted section 2680(c) to bar claims premised upon essentially any injury to property sustained during its detention. See Kosak v. United States, 465 U.S. 848, 853-55, 104 S. Ct. 1519, 1523-24, 79 L. Ed. 2d 860 (1984). Further, the courts usually broadly interpret the term law enforcement official within 2680(c). See United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir. 1984) (USDA inspectors in- cluded); see also Halverson v. United States, 972 F.2d 654, 655-56 (Sth Cir. 1992) (INS border patrol agents included); Schlaebitz v. United States Dep’t. of Justice, 924 F.2d 193, 194 (11th Cir. 1991) (federal Marshals included); Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988) (INS border patrol agents included); Formula One Motors, Ltd. v. United States, 777 F.2d 822, 823 (2nd Cir. 1985) (DEA agents included); United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 397 (9th Cir. 1979) (FAA employees included); but see Bazuaye v. United States, 317 U.S. App. D.C. 370, 83 F.3d 482 (D.C. Cir. 1996) [**21] (postal employees not included); Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994) (section 2680(c) is limited to detention of goods by law enforcement officers acting in tax or customs capacity). [*416] If a party were to proceed under the FTCA on a negligence theory, then his or her claim for money damages might 29 be barred because the lost or damaged property was detained by law enforcement officials. Indeed, if the Beins had proceeded under the FTCA their action might have been barred on this very basis. See 28 U.S.C. § 2680(c). Thus, granting an award of damages under Rule 41(e) could allow a party to make a recovery pursuant to a procedural rule even though he or she would be barred from such recovery under a statute passed by Congress. Such a result would be incongruous as it would be directly contrary to the intent of Congress. Finally, we make reference to two of our recent cases. First we observe that our holding today is not inconsistent with our opinion in United States v. Chambers, 192 F.3d 374. In Chambers, we were presented with the question of what role the district court should play when addressing a Rule 41(e) motion [**22] in which the Government asserts it no longer has possession of the property at issue. We concluded that in such a case the District Court must determine, in fact, whether the government retains possession of the property; if it finds that the government no longer possesses the property, the District Court must determine what happened to the property. The District Court must hold an evidentiary hearing on any disputed issue of fact necessary to the resolution of the motion. If the District Court concludes that the government's actions. . . were not proper, it shall determine what remedies are available. Chambers, 192 F.3d at 378 (citations omitted). We did not consider there whether such available remedies would include an award of monetary damages. See id. Indeed, we never mentioned sovereign immunity in our opinion. Second, we note that in our en banc opinion in United States v. One Toshiba Color Television, 213 F.3d 147, 2000 U.S. App. LEXIS 11584, 2000 WL 669978, at * 10 (3d Cir. 2000), we indicated that even if an owner of property obtains an order vacating an order for forfeiture “that [success] does not mean that he is entitled to any monetary relief [**23] or relief in the form of a transfer of property.” We, however, did not make a ruling on the point as we merely indicated that under Fed. R. Civ. P. 60(b) such relief might not be available. Again, as in Chambers, we did not discuss sovereign immunity. Thus, our opinion in One Toshiba left open the issue we decide here. 30 Ill. CONCLUSION For the reasons set forth above, we find that the district court did not have jurisdiction over the Beins’ Rule 41(e) motion to the extent it sought to recover damages for property the Government allegedly destroyed. Accordingly, we will vacate the order of the district court entered July 9, 1999, and remand the matter to the district court for dismissal for lack of jurisdiction insofar as the motion sought and the order awarded monetary damages. Thus, the order of July 9, 1999, shall stand only with respect to the order to the Government to return the one cart in its possession. The order of August 18, 1999, will be affirmed. We will remand the case to the district court for entry of an order in accordance with this opinion. 31 OFFICE OF THE CLERK UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 21400 United States Courthouse 601 Market Street Philadelphia PA 19106-1790 pacer.ca3.uscourts.gov December 13, 2000 Marcia M. Waldron Telephone Clerk 267-299-4924 Mr. James A. Drach, Clerk U.S. District Court for the Western District of PA 7th & Grant Streets Room 829 Pittsburgh, PA 15219 RE: Docket No. 99-3822 USA vs. Bein D.C. CIV. No. 94-cr-00214 Dear Mr. Drach: Enclosed is a certified copy of the judgment in the above- entitled case(s), together with copy of the opinion. The certified judgment is issued in lieu of a formal mandate and is to be treated in all respects as a mandate. (x) We release herewith the certified list in lieu of the record. Counsel are advised of the issuance of the mandate by copy of this letter. A copy of the certified judgment is also enclosed showing costs taxed, if any. Very truly yours, MARCIA M. WALDRON Clerk By: /s/_ Nicole M. Bruno Nicole M. Bruno Case Manager Enclosure cc: Bonnie R. Schlueter, Esq. Stanley W. Greenfield, Esq. Ms. Esther J. Bein Mr. William S. Bein 32 TILE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 99-3822 UNITED STATES OF AMERICA; V. ESTHER BEIN; WILLIAM BEIN, Appellants On Appeal from the United States District Court for the Western District of Pennsylvania D.C. Crim. No. 94-214 District Judge: Hon. Donetta W. Ambrose Present: GREENBERG, McKEE, and GARTH, Circuit Judges JUDGMENT This cause came on to be heard on the record from the United States District Court for the Western District of Pennsylvania and was argued by counsel on May 9, 2000. On consideration whereof, it is now here ordered and adjudged by this Court that the District Court did not have jurisdiction over the Beins’ Rule 41(e) motion to the extent it sought to recover damages for property the Government allegedly destroyed. Accord- ingly, the order of the district court entered July 9, 1999 is vacated and the matter is remanded to the district court for dismissal for lack of jurisdiction insofar as the motion sought and the order awarded monetary damages. The order of July 9, 1999 shall stand only with respect to the order to the Government to return the one cart in its possession. Thus, the order of August 18, 1999 is 33 i a affirmed. All of the above in accordance with the opinion of this Court. ATTEST: /s/__Marcia M. Waldron Marcia M. Waldron Acting Clerk Dated: June 5, 2000 Certified as a true copy and issued in lieu of a formal mandate on December 13, 2000. Teste: /s/ Marcia M. Waldron Marcia M. Waldron Clerk, United States Court of Appeals for the Third Circuit (e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent 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. Sec. 2414. Payment of judgments and compromise settlements Except as provided by the Contract Disputes Act of 1978, payment of final judgments rendered by a district court or the Court of International Trade against the United States shall be made on settlements by the Secretary of the Treasury. Payment of final judgments rendered by a State or foreign court or tribunal against the United States, or against its agencies or officials upon obliga- tions or liabilities of the United States, shall be made on settlements by the Secretary of the Treasury after certification by the Attorney General that it is in the interest of the United States to pay the same. Whenever the Attorney General determines that no appeal shall be taken from a judgment or that no further review will be 34 _ sought from a decision affirming the same, he shall so certify and the judgment shall be deemed final. Except as otherwise provided by law, compromise settlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in iike causes and appropriations or funds available for the payrnent of such judg- ments are hereby made available for the payment of such compro- mise settlements. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0974%3A2. Public record. Not legal advice.