# Petition for Writ of Certiorari — Doe v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 998

## Text

In The

Supreme Court of the United States

*
October Term, 1992

JOHN DOE,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.

On Petition for Writ of Certiorari to the United States Court
of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

G. ALEXANDER BOCHETTO
MONTEVERDE, HEMPHILL,
MASCHMEYER & OBERT, P.C.
Attorneys for Petitioner
2230 The Fidelity Building
123 South Broad Street
Philadelphia, Pennsylvania 19109-1022
(215) 735-1900

2501

Mprgelai (800) 3 APPEAi * (800) 5 APPEAL * (800) BRIEF 21
ervices, inc.

QUESTIONS PRESENTED

I. JURISDICTION IN THE COURT OFAPPEALS

Whether the denial of a Rule 41(e) motion for the return of
property on behalf of an intervener is a final appealable order
pursuant to 28 U.S.C. § 1291, when the record lacks any competent
evidence that the items seized are related to a criminal proceeding

‘inesse.”

Il. ABANDONMENT

A. Whether Petitioner’s property must be returned because
Petitioner had not voluntarily abandoned it and the Government
failed to obtain a search warrant, but rather attempted to use a grand
jury subpoenaas a substitute for such a warrant.

B. Whether the landlord’s unconstitutional use of
Pennsylvania’s distraint statute in locking Petitioner out of the
premises without notice, vitiates any evidence of a willful
abandonment.

C. Whether the putative consent to search obtained by the
Government was invalid because Petitioner had been illegally
locked out of the premises, and whether Petitioner’s property
should therefore be returned.

D. Whether a search warrant should have been obtained by
the Government to search each separately secured filing cabinet
inside Petitioner’s premises.

ul
Ill. OVERBREADTH

Whether the grand jury subpoena, demanding all of the records
of AminA. Rashid & Associates, was unconstitutionally overbroad
when it failed to particularly describe either the items to be seized or
the probable-cause basis for the seizure.

IV. EXECUTION

Whether the Government’s failure to knock and announce their
presence and the purpose of their entry to Petitioner’s premises
requires the return of Petitioner’s property under Rule 41(e).

V. FIFTHAMENDMENT

Whether the Government may not circumvent the safeguards
of the Fourth and Fifth Amendments by unlawfully seizing
Petitioner’s records and compelling him to appear and reclaim his
records, thereby forcing Petitioner to authenticate the contents
thereof in violation of the Fifth Amendment.

il

TABLE OF CONTENTS

Page
ee i
Se ee ill
I ons vn sk wae s cca ccacueecacccnccca, V
ne ee ee l
Statement of Jurisdiction............................. 2
Constitutional and Statutory Provisions Involved ....... 2
statement of the Case ... 0.0... ccc ccc ccc cece, 2

rg cas ss wkd wih-e do wcaccccerct 2

es os bane dows cceeencgnx, 3

C. Proceedings Below............................ 6
Keasons for Granting the Writ........................ 8
Argument:

I. Jurisdiction in the Court of Appeals ............ 8

A. The District Court’s denial of petitioner’s Rule
41(e) motion for return of property on behalf
of an intervenor is a final appealable order
pursuant to 28 U.S.C. § 1291, because the
record lacks any competent evidence that the
items seized are related to a criminal proceeding
Sia 8

Ill.

ig

Contents

I 0) hn a Le RO OS ce ee ke oe

A.

Petitioner’s property must be returned because
petitioner had not voluntarily abandoned his
property and the government failed to obtain a
search warrant, but rather attempted to use a
grand jury subpoena as a substitute for such a
SS Sisous oa bee es aces kee ke ees

The landlord’s unconstitutional use of the
distraint statute in locking petitioner out of the
premises without notice vitiates any evidence of
Bo ge” re ee rer

The consent to search obtained by the
government was invalid because petitioner had
been forced out of the premises, and petitioner’s
property should therefore be returned.......

A separate search warrant should have been
obtained by the government to search each
separately secured filing cabinet inside
OR @ I ons ck uecs sawaane ce.

as a a ee ee

A.

The grand jury subpoena demanding all of the
records of Amin A. Rashid & Associates was
unconstitutionally overbroad because it failed to
particularly describe either the items to be seized
or the probable-cause basis for the seizure. ..

I oe a ae ee oe

16

18

20

21

21

Contents

A. The government’s failure to knock and
announce their presence and the purpose of their
entry requires the return of petitioner’s property
EE Tee Pi ars 6. kg we Awe ee eee

. ‘Renee Pe og it eee

A. The government may not circumvent the
safeguards of the Fourth and Fifth Amendments
by unlawfully seizing petitioner’s records and
compelling him to appear and reclaim his
records, thereby authenticating contents thereof
in violation of the Fifth Amendment.........

8 ee re eee OP
TABLE OF CITATIONS

Cases Cited:

Allegheny Clark Lift Inc. v. Woodline Industries of

Pennsylvania, Inc., 356 Pa. Super. 269, 514 A.2d 606
(EPEE cCakiuo eiieekesc beeen e

SS @¢8 £222 8 8 FS 8 666 OO FO SO. C6 OO 8.68.8 8 OOOO ES 6 OE OOS SO Se eS

Brodsky v. Phila. Athletic Club, 277 Pa. Super. 49, 419
ume Ue ee sk cata ec teense

Page

23

28

21

vi

Contents
Page

Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776
CUPMER ch 5 ox caeeus cuk dase Wene eee eee 17, 18, 19

Commonwealth v. Cerulla, 223 Pa. Super. 24, 296 A.2d
ROARED 66-6 04 5 bk dk aad eee eee 24

Commonwealth v. DiMichael, 442 Pa. Super. 553, 277
Pdi BF CIA ose EE AER eee 24

Couch v. United States, 409 U.S. 322, 93 S. Ct. 611 (1973)
DiBella v. United States, 369 U.S. 121, 82 S. Ct. 654
CRDGEE ov i niORue eked ¥en eeeee 8, 10

Fisher v. United States, 425 U.S. 391, 96 S. Ct. 1569
ti) ere wea gee Serr eet eer rs 8 o. ..26, 28

Government of Virgin Islands v. Edwards, 903 F.2d 267
tO A Brrr er ry rn 9

In re Grand Jury Proceedings, 632 F.2d 1033 (3d Cir.
ee eres Petr ene Mapai age Sr he Fs 27

In re Grand Jury Impaneled (Colucci), 579 F.2d 851 (3d
Cit. FEVOS 5:00 skchachn 0a tee cee eae ce lee 26

In re Grand Jury Impaneled (Markowitz), 603 F.2d 469
ke A, Sere aee er cee wg eeeee 26, 27

vil

Contents
Page

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967)

‘he hkn PREROOUN SS RESO EE ees ee ee aaa 14
Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964)..... 25
Matter of Grand Jury Impaneled March 19, 1980, 680 F.2d

we SO OOS Se ee eke ewe ke eee cena 25, 26
McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191

SE 555 oss Bekah a cea et eek eee 14
Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942 (1978)

ee ee ey eee es EE Pe nes er reer 22
Miranda v. Arizona, 34 U.S. 436, 86 S. Ct. 1602 (1966)

hd be btn eae eed ae de SOC G oe hae be CER deus 25
Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417 (1918)

VEINS RE eee STORER ROE Ck doa Cue Eeda beta: 11
Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978)

ARIA E VS yes Oe ea oe oe eae 13
Schneckloth v. Bustamonte, 412 U.S. 218, 935 S. Ct. 2041

RNR Oe te deals ia as gate ees CO ay eae: 21
United States v. Calandra, 414 U.S. 338, 94 S. Ct: 613

SEES wansrn alent als a Grit ale Cee ee eee 22
United States v. Cella, 568 F.2d 1266 (9th Cir. 1977)

Pe eee eT eT ETL eee Te ER CRO ATTA 14

vill

Contents
Page

United States v. Chuke, 554 F.2d 260 (6th Cir. 1977)
United States v. Furina, 707 F.2d 82 (3d Cir. 1983) .....
DORR Ry ied ods kaee kek AACR REE NAR eT 8, 9, 10, 12

United States v. Goldstein, 416 U.S. 943, 94S. Ct. 1951 (1972)

Se Pee TT eT TNC eT TET Tee Or ey Cre rrr ee 16

PUY cious waa oe ta bee eR Laer ale hee Renee ea 20
United States v. Kane, 637 F.2d 974 (3d Cir. 1981) ..... 21

United States v. Minker, 312 F.2d 632 (3d Cir.), cert. denied,
Bid Ws Does OS Sx Gh. Foe CHO ok vc vecw nnd curves 18

United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090
a ne IPR REO cn ely Arete IM me RTT OP ann aie een a 11

United States v. Quartermain, 467 F. Supp. 782 (E.D. Pa.
DP a galace Tel eet tah eee. CoC eee ses, 21

United States v. Robinson, 430 F.2d 1141 (6th Cir. 1970)
SIR NAP EN EY ey ND ah) Maytals A remAN N.S PERN e Wee 15, 18, 19

United States v. Sanders, 719 F.2d 882 (6th Cir. 1983)

Ix

Contents
Page

United States v. Schwartz, 457 F.2d 895 (2d Cir.), cert. denied,
410 U.S. 941, 93 S. Ct. 1376, 35 L. Ed. 2d 608 (1973)

SENG Ce eR ES OKA ES AEE EMS OOEE TOOL ee 22
United States v. Sigal, 341 F.2d 837 (3d Cir.), cert. denied,

gee U.S. 821, 06S. Ct. 23 (1909) ............-c. ce. 22
United States v. (Under Seal), 475 F.2d 834 (4th Cir.), vacated

as moot, 471 U.S. 1001, 105 S. Ct. 1861, 85 L. Ed. 2d

Fr Ps Sunk Var eck s eee ela ke kee 27
United States ex rel. Ametrane v. Gable, 401 F.2d 765 (3d

Cae Daren cue caer titular ear: eee 24
United States ex rel. Kabey v. Mazurkiewicz, 431 F.2d 839

Ws BETO Soke hes cv edenscsécécesecccelce 15
Statutes Cited:
sed a : 17
ce eRe RL | ce 23
er Ske ee | a ee 2
ee As a ee ee oko kes locke ee i, 8
United States Constitution Cited:
Fourth Amendment .................. i, 1, 2, 2, 21, 23, 25

Fifth Amendment.................... a, 1,2, 23, B27.

Contents

Page
Rules Cited:
Supreme Court Rule 13.... ae ; 2
Fed. R. Crim. P. 4l(e) . e ........ passim
Fed. R. Crim. P. 12.. ; can Pee Tee TCT Tey
Fed R. Crim P. 12(e) Cree SET TE Pe ne 6
Pie Bie Seely Bes OUD ce cee sencdesas ue eee Cae pa eee 14
Other Authority Cited:
Black Law Dictionary (4th Ed. 1951) ............... .. 14

APPENDIX

Appendix A — Order of the Third Circuit Court of Appeals
En Banc Denying Petitioner’s Request for Rehearing
“BP re Tre Tre eee eee ee ee la

Appendix B — Order of the Third Circuit Court of Appeals
Dismissing Petitioner’s Appeal for Lack of Jurisdiction
PU I it ee ee a a ee ees 3a

Appendix C — Order of the District Court for the Eastern
District of Pennsylvania Denying Petitioner’s Rule 41(e)
Motion Issued August 8, 1991 ................ ee

Xl

Contents
Page

Appendix D — Transcript of District Court Hearing Before
Honorable Judge Buckwalter Granting Petitioner
Intervenor Status Recorded July 18, 1991 .......... 6a

Appendix E — Transcript of District Court Hearing Sur Rule
41(e) Motion Before the Honorable Judge Buckwalter
meconmed Amgwet 7, 19D] 2... . ccc ccc cscccccccn l6a

Appendix F — Copy of Petitioner’s Lease to the Property
re ee 82a

Appendix G — Copy of the Grand Jury Subpoena that was
Used as a Search Warrant........ 0.0.0.5... ccccuce 120a

Appendix H — Amendments IV and V to the United States
RE Brera ye er Rei a lao uk 122a

Appendix I — Photos of Petitioner’s Rent Deposit Checks
for the Premises Searched, Representing Exhibit ‘‘D-2”’

to District Court Hearing on August 7, 1991 ....... 123a

Appendix J — Distraint Statute 68 P.S. § 250.302...... 125a

l

No.

In The
Supreme Court of the United States
-

October Term, 1992

JOHN DOE,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondents.

Petition for Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner, John Doe, respectfully prays that a writ of
certiorari issue to review the judgment and opinion of the United
States Court of Appeals for the Third Circuit refusing to consider
the merits of petitioner’s Rule 41(e) motion for return of property,
which property was seized by the United States Government in
violation of the Fourth and Fifth Amendments to the United States
Constitution.

OPINIONS BELOW

The order of the United States Court of Appeals for the Third

2

Circuit denying the petitioner’s request for hearing en banc, issued
on May 18, 1992, is Appendix A to this petition. The order of the
Third Circuit refusing to consider the merits of petitioner’s Rule
41(e) motion is Appendix B to this petition. The order of the
District Court for the Eastern District of Pennsylvania denying
petitioner’s Rule 41(e) motion, issued on August 8, 1992, is
Appendix C to this petition.

STATEMENT OF JURISDICTION

The Court of Appeals’ decision in this matter, denying
petitioner’s Rule 41(e) motion, was filed on March 16, 1992. A
timely petition for rehearing was filed on March 30, 1992. The
Court of Appeals’ denial of petitioner’s request for rehearing was
issued on May 18, 1992. Pursuant to Rule 13 of the Rules of this
Court, this petition has been timely filed before August 17, 1992.
This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

This appeal implicates Amendments IV and V to the United
States Constitution, which are set forth in full in Appendix H.

STATEMENT OF THE CASE

A. Introduction

This case centers upon the government’s unlawful search and
seizure of petitioner’s premises, resulting in the seizure of volumes
of personal and private documents. This seizure was effectuated by
government agents smashing open the door to petitioner’s rental
property, drilling open filing cabinets, and randomly seizing each
and every document on the premises. The government agents did
not have petitioner’s consent and did not have a search warrant;
rather, they attempted to use an overbroad grand jury subpoena

3

served on a third party to justify their unlawful entry. As set forth
below, the seizure in question was in violation of petitioner’s
Fourth and Fifth Amendment rights.

B. Facts

On or about August 1, 1989, petitioner signed a lease in the
name of “Amin Rashid & Associates, P.C.” for office space and
furniture located on the 30th floor of the Lewis Tower Building in
Philadelphia, Pennsylvania. (A copy of the lease constitutes
Appendix “F”.) In November 1990, Mr. Rashid experienced
difficulty paying his rent, and on November 14, 1990, Jeffrey
Seligsohn, an employee of Binswanger Management Corp., the
building manager, instructed Mr. Rashid that neither he nor any of
his employees would be permitted to remove any of the property
from the 30th floor of the Lewis Tower Building (App. 24a).'

On December 14, 1990 the office of Robert Guzzardi,
Esquire, counsel for the owner of the Lewis Tower Building,
informed Daniel Bernstein, then counsel for petitioner, that Mr.
Rashid would be forcibly locked out of the building on December
17 (App. 24a). Mr. Bernstein was unable to advise Mr. Rashid of
the lockout until 9:30 a.m on December 17, after the lockout had
already been effected (App. 25a). After Mr. Rashid was forcibly
removed from the premises, Mr. D’Erasmo turned off the elevators
to the 30th floor, precluding Mr. Rashid from entering without a
special key, which the landlord did not provide (App. 40a).

Mr. Rashid never intended to abandon any of his property that
remained at Lewis Tower (App. 48a). In fact, he retained Mr.

1. Unless otherwise noted, references to “App.” are to the appendix pages
containing the transcript of a hearing held in the United States District Court for the
Eastern District of Pennsylvania, before the Honorable Judge Buckwalter, on August 7,
1991. Acomplete copy of that transcript is Appendix “E”.

simian

4

Bernstein to offer partial payment in exchange for allowing him
access to the premises to remove his files (App. 26a). Mr. Guzzardi
rejected this suggestion and refused entry without payment in full
(App. 26a).

Although Federal Postal Agent Carol Hazelton did not search
Mr. Rashid’s premises until March 4, 1991, she was aware, as early
as January 25, 1991, of Mr. Rashid’s temporary business address at
1424 Chestnut Street, Philadelphia, PA. (App. 9a). However, when
Agent Hazelton eventually served the grand jury subpoena on
Jeffrey Seligsohn, on February 28, 1991, no attempt was made to
notify Mr. Rashid of the government’s intentions to seize his
records (App. 5a). Although the grand jury subpoena requested
personal and private documents of the petitioner, it was directed to
a third party and contained vague and overbroad language. (A copy
of the grand jury subpoena in question is Appendix “G”.) Mr.
Seligsohn promptly informed Mr. Guzzardi of the government’s
subpoena. However, Seligsohn declined to give the petitioner this
same information, notwithstanding petitioner’s repeated efforts to
contact Mr. Seligsohn regarding a settlement of the landlord/tenant
dispute (App. 27a).

On January 31, 1991, the landlord’s agent at the Lewis Tower
Building placed a “distraint” on the entire office space and
contents leased to AminA. Rashid & Associates, by posting notice
on the 30th floor, knowing full well that Petitioner had no means of
observing such notice (App. 32a). Petitioner received no notice of
the landlord’s “distraint” or the fact that the electric elevators had
been turned off (App. 40a, 60a).

On or about early January and February, 1991, at Mr. Rashid’s
request, Mr. Bernstein made two telephone calls to Mr. Guzzardi’s
office to further inquire whether any of Mr. Rashid’s property had
been removed (App. 27a). In response, Mr. Guzzardi’s office
incorrectly informed Mr. Bernstein that the “status quo” of his

5

property remained the same (App. 27a). In early March, 1991, Mr.
Rashid instructed Mr. Bernstein to commence settlement
negotiations with Lewis Tower to gain entrance to the 30th floor
and to renew his lease (App. 27a, 28a).

On March 4, 1991, unbeknownst to Mr. Rashid or to Mr.
Guzzardi, Agent Hazelton and FBI Agent Williams forcibly
entered the 30th floor of the Lewis Tower (App. 7a). Once inside,
Agent Hazelton drilled open a number of locked filing cabinets and
randomly rifled through Mr. Rashid’s records (App. 13a, 15a). The
agent returned the next day and removed all of Mr. Rashid’s
records, including privileged litigation files and other personal
memoranda (App. 14a, 15a). Mr. Rashid offered uncontradicted
testimony that he never intended to abandon the files or to waive
any attorney-client privilege (App. 50a).

Mr. Rashid, through Mr. Bernstein, agreed to a new lease with
Mr. Guzzardi to satisfy the prior debt and to pay for “storage rent”
(App. 29a). In accordance with this agreement, Mr. Rashid drafted
two checks, one for $28,817, for back rent and “storage rent,” and
the other for $9,300, representing an additional security deposit
(App. 30a). Prior to completing the transaction, Mr. Rashid
inspected the premises with Mr. Bernstein and for the first time, on
April 29, 1991, learned that his files had been seized by the
Government (App. 30a, 31a). Throughout this period of
negotiations while Mr. Rashid was attempting to regain access to
the premises, he maintained an operable telephone in the narne of
Amin Rashid & Associates (App. 3la). Upon learning of the
seizure, Mr. Rashid immediately inquired of Mr. Guzzardi whether
or not the parties could amend the settlement agreement. Mr.
Guzzardi denied Mr. Rashid’s request and further stated that he had
no idea the items were missing prior to April 29, 1991 (App. 31a).
Mr. Rashid persisted in attempting to gain access to the premises
by telephoning Mr. Seligsohn of Binswanger in order to request an
amendment to the Settlement Agreement (App. 26a, 27a), but was

a Ne

6

informed that Mr. Seligsohn was unavailable. Mr. Seligsohn never
returned any of Mr. Rashid’s telephone calls (App. 27a).

Mr. Rashid’s efforts to gain access to the premises were
unsuccessful, but upon learning of the seizure, he quickly
petitioned the District Court to intervene and quash the subpoena
(App. 4a, July 18, 1991 hearing).? On or about October 1, 1991,
pursuant to an agreement between undersigned counsel and
Thomas Suddath, Jr., AUSA, Mr. Rashid was permitted to begin
making copies of his personal records which had been seized by the
government. Due to the importance of these documents, Mr.
Rashid immediately accepted the government’s offer to recover
copies of certain non-incriminating documents (App. 66a, 67a).

C. Proceedings Below

The United States District Court for the Eastern District of
Pennsylvania’s denial of petitioner’s Rule 41(e) motion on August
7, 1991, was erroneous, since petitioner’s personal property was
forcibly and unlawfully seized without a search warrant.
Furthermore, as of the writing of this Petition, the District Court
declined to issue findings of fact, as required by Fed. R. Crim. P.
12(e).

Petitioner appealed to the Third Circuit, requesting a review
of the merits of the District Court’s ruling and its failure to issue
findings of fact. On March 9, 1992, counsel for petitioner
presented oral argument to the Third Circuit. By judgment order
dated March 16, 1992, petitioner’s appeal was erroneously
dismissed for lack of appellate jurisdiction. In support of the
panel’s decision to dismiss petitioner’s appeal, the panel cited a
single case which, based on the record below, makes the panel’s
ruling contrary to prior rulings of this Court and the Third Circuit.

2. Acopy of the July 18, 1991 transcript is Appendix “H.”

On March 30, 1992, petitioner requested an en banc rehearing of
the panel’s decision. By judgment order dated May 18, 1992, the
Court of Appeals denied petitioner’s request. Notwithstanding the
gross constitutional violations carried out by the government
agents against petitioner, and the lack of any competent evidence
that the items unlawfully seized were ever abandoned or related to
a criminai proceeding “in esse,” petitioner has been denied the
opportunity for appellate review.

8
REASONS FOR GRANTING THE WRIT

Certiorari should be granted because the conduct of the
government agents in unlawfully seizing petitioner’s property
without a warrant violates petitioner’s fundamental constitutional
rights. Hence, the Third Circuit’s refusal to provide petitioner with
appellate review of the government’s unlawful conduct is contrary
to the decisions of this Court and of the United States Court of
Appeals for the Third Circuit. The issues in this case are of
exceptional importance, to wit, the public interest in deterring
unlawful police conduct and guarantying appellate review of
erroneous District Court rulings which fail to remedy violations
and fundamental constitutional rights.

ARGUMENT
I.
JURISDICTION IN THE COURT OF APPEALS

A. The District Court’s denial of petitioner’s Rule 41(e) motion
for return of property on behalf ofan intervenor is a final appealable
order pursuant to 28 U.S.C. § 1291, because the record lacks any
competent evidence that the items seized are related to a criminal
proceeding “in esse.”

The Third Circuit’s refusal to review the District Court’s
erroneous denial of petitioner’s Rule 41(e) motion is in conflict
with other courts of appeals and constitutes a significant departure
from the usual course of judicial proceedings under similar
circumstances. In dismissing this appeal for lack of appellate
jurisdiction, the panel relied on United States v. Furina, 707 F.2d
82 (3d Cir. 1983). Actually, the facts of this case are significantly
different from those of Furina, and the panel’s ruling directly
conflicts with this Court’s holding in DiBella v. United States, 369
U.S. 121, 82S. Ct. 654 (1962).

J |

Evidence that appellant’s Rule 41(e) motion is tied to an
“ongoing” criminal investigation has been recognized by this
Court in DiBella as a prerequisite to finding that a Rule 41(e)
motion was not yet a final order. In Furina, the District Court
properly conducted an “in camera” review of a master affidavit of
probable cause that was submitted along with the search warrant.”
After making such review, the District Court stated a“... viable
ongoing investigation was in progress.” Furina, 707 F.2d at 83.
The Furina court also required a report of current activity. In the
case at bar, not a scintilla of record evidence was developed at the
District Court level establishing that any investigation is
“ongoing”, there is no indication in the record that any indictment
will ever be forthcoming. Thus, the Third Circuit’s affirmation of
the District Court’s erroneous ruling here directly conflicts with
prior decisions in this and other Circuits. See Government of Virgin
Islands v. Edwards, 903 F.2d 267 (3d Cir. 1990). In Edwards, the
appellant filed a Rule 41(e) motion for return of jewelry found in
his possession during his arrest. The government contended the
defendants should not be entitled to a return of these items citing a
“possibility” that he may be prosecuted for the theft of the items. At
the time of his appeal, however, there was no evidence presented
that any party was coming forth to identify the items as stolen.
Based on these facts, the Third Circuit ruled that “... [t]he mere
possibility of a prosecution does not deprive an order of finality.”
Id. at 272, (emphasis added).‘

Petitioner submits Furina cannot be appropriately applied to
him because he participated in the proceedings below solely as an

3. In Furina, the warrant was served directly on appellant prior to seizure of his
property. Appellants in that case were not, unlike Petitioner, intervenors.

4. Ininre Grand Jury Proceedings, 716 F.2d 493 (8th Cir. 1983), the Eighth
Circuit ruled that the mere fact that suppression of evidence will result froma successful
Rule 41(e) motion does not “per se” make such motion tied to a criminal proceeding.
Rather, record evidence of such acontention must be established.

ee |

10

intervenor. This is significant because Petitioner’s motion was
independent from the party actually served with the subpoena. The
absence of any evidence that petitioner’s property is inextricably
“tied” to a criminal prosecution makes the District Court’s ruling
appealable. If there is no criminal prosecution to which petitioner
is subject, the matter is final as to petitioner, and therefore
appealable by him, because nothing remains to be determined.

In Furina, the appellant was served directly with a search
warrant supported by probable cause. The appellant in Furina was
not before the Court as an intervenor and clearly had an
opportunity to seek appellate review of the District Court’s denial
during a subsequent motion to suppress. This was established
through record evidence, requested by the Furina Court, which
established that appellant was likely to be indicted.

In the case at hand, no warrant has been issued and no affidavit
of probable cause has been placed in the record. The panel refused
to consider this appeal, notwithstanding the lack of any record
evidence that appellant’s Rule 41(e) motion was tied to a criminal
investigation. In DiBella the appeilant was arraigned and released
on bail prior to the filing of the Rule 41(e) motion. Based on these
facts, this Court ruled: “[W]hen at the time of ruling there is
outstanding a complaint, or a detention or release on bail following
arrest or an arraignment, information, or indictment, in each such
case, the order on a suppression motion must be treated as but a
step in the criminal case preliminary to trial thereof.” DiBella, 369
U.S. at 130, 82 S. Ct. at 660 (emphasis added).

In DiBella, the appellant was not before the Court solely as an
intervenor: he had been served with a search warrant. Furthermore,
the nature of the contraband seized (illegal narcotics) in and of
itself established that the eppellant’s Rule 41(e) motion in DiBella
was in fact “tied” to a criminal investigation. No such evidence
exists here. The Third Circuit’s application of Furina to petitioner

1]

is also inconsistent with this Court’s decision in Perlman v, United
States, 247 U.S. 7, 38 S. Ct. 417 (1918). In that case, Perlman
moved to prevent the government from maintaining possession of
evidence which had been introduced in a civil trial in which
Perlman was not a party. The government intended to use such
evidence as part of a perjury investigation which had not resulted
in an arrest or indictment. As in the instant case, the government
argued that the District Court’s order was not final. This Court
rejected this argument:

(T]he second contention of the government is
somewhat strange, that is, that the order
granted upon its solicitation was not final as to
Perlman but interlocutory in a proceeding not
yet brought and depending upon it to be
brought. In other words, that Perlman was
powerless to avert the mischief of the order but
must accept its incidence and seek a remedy at
some other time in some other way. We are
unable to concur.

Perlman, 247 U.S. at 9,38 S. Ct. at 419 (emphasis added).°

The importance of petitioner’s status as an intervenor was
confirmed by this Court in United States v. Nixon, 418 U.S. 683, 94
S. Ct. 3090 (1974). There, the president moved to quash a
subpoena issued to a third party. The District Court denied this
relief, and an appeal was taken to the Circuit Court. Relying on
Perlman, supra, this Court noted that because the president was
before the Court as an intervenor, and not likely to subject himself

5. Although this Court ultimately denied Mr. Perlman’s motion because he had
volunteered the items in question at a previous trial, the Court nevertheless found the
District Court’ s denial to be final as to Perlman, in the absence of evidence of a related
proceeding. Perlman, 247 U.S. at9,38S.Ct. at419.

12
to contempt, the denial of the motion to quash by the District Court
was final as it related to the president. In the instant case, petitioner
does not have the option of risking contempt for refusal to comply
with the subpoena, because the government never served him
directly. Rather, the government elected to forcibly seize his
records with absolutely no notice to petitioner. Hence, petitioner is
only involved in these proceedings as an intervenor, and the
District Court’s denial of his relief is final, absent any evidence that
the items which he sought to have returned are “tied” to an
“ongoing” investigation.

Lastly, the Third Circuit has denied petitioner the additional
protections afforded by the court in Furina. There, the Circuit
Court affirmed the District Court’s extensive efforts to protect the
appellant’s rights by providing a reasonable time limitation within
which appellant would have to be advised of the ultimate outcome
of the government’s investigation. The District Judge ruled: “[A]t
some point ... 1 intend to draw a line and say to the government
you're going to have to indict or acquit.” Furina, 707 F.2d at 83. In
the case sub judice, more than a year and a half has passed since
the issuance of the subpoena, without any proof that an arrest or
indictment is imminent.

Petitioner is presently “in limbo.” Assuming, arguendo, the
government never indicts, the Third Circuit’s refusal to consider
petitioner’s appeal relating to the unreasonable search will
preciude appellate review of the District Court’s erroneous
decision. Furthermore, the purpose of Rule 41(e) — to deter
unlawful police conduct and preserve a citizens’ rights to appeal
erroneous District Court decisions — will not be served. If this
Court refuses certiorari, declines such review of the Circuit
Court’s decision, and if petitioner is not arrested, he will never be
afforded the appellate review necessary to redress the
government’s unlawful trampling of his constitutional rights.

13

Il.
ABANDONMENT

A. Petitioner’s property must be returned because petitioner
had not voluntarily abandoned his property and the government
failed to obtain a search warrant, but rather attempted to use a
grand jury subpoena as a substitute for such a warrant.

Petitioner has standing to challenge the seizure in question
pursuant to this Court’s decision in Rakas v. Illinois, 439 U.S. 128,
99 S. Ct. 421 (1978), which held that a citizen has a right to
challenge a governmental seizure as to all places and things where
a legitimate expectation of privacy exists.

It cannot be reasonably questioned that petitioner maintained
a reasonable privacy interest in the items seized by the
government, many of which included privileged communications
and private memoranda (App. 49a, 50a). Petitioner’s testimony
below demonstrated his expectation that his records would remain
free from governmental intrusion (App. 50a, 51a, 31a, 26a, 29a).
Petitioner first learned that his personal records had been seized on
April 29, 1991 (App. 31a). This was after petitioner drafted two
checks to the landlord, for “storage rent” and a new security
deposit. (See Appendix I.)

In addition, petitioner hired an attorney, Daniel Bernstein,
Esquire, who corroborated petitioner’s testimony by further
testifying that petitioner repeatedly made attempts to contact the
landlord for the purpose of regaining access to the office and his
property (App. 25a, 26a, 27a). However, Mr. Seligsohn, who was
authorized to permit petitioner’s reentry, refused to return
petitioner’s calls (App. 54a).

The petitioner undertook extreme precautionary measures to
maintain his right of privacy by securing ali of his records in locked

14

filing cabinets, locating such cabinets within interior offices, and
maintaining possession of the only key.

Petitioner has standing to challenge the seizure in question as
a matter of law, based on the District Court’s ruling (App. 66a), and
the government’s stipulation (App. 4a), that the petitioner is
properly before the Court as an intervenor pursuant to Fed. R. Civ.
P. 24(a). These record facts provide a more than sufficient basis for
the petitioner to challenge the seizure in question.

The burden of proving abandonment is on the government.
McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191 (1948).
The question of whether or not an individual has abandoned his
property, thereby waiving any right to object to an unreasonable
seizure thereof, is primarily a question of intent, which may be
inferred from words, acts, and other objective facts. United States
v. Cella, 568 F.2d 1266, 1283 (9th Cir. 1977). An abandonment is a
voluntary relinquishment and termination of a known right, an
intentional throwing away of property rights, to the extent that one
no longer retains a reasonable expectation of privacy therein. Katz
v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967).°

In the case sub judice, the record is replete with undisputed
evidence of petitioner’s intention to maintain a vested interest in
and possession over his private property. The elevators to the 30th
floor had been shut off by the building manager, Mr. Chris
D’ Erasmo, thereby cutting off petitioner’s only means of access to
his property (App. 40a). In addition, petitioner repeatedly called
Mr. Seligsohn, who was in charge of the building. However, Mr.
Seligsohn refused to return his calls (App. 27a). Furthermore, in
January and February of 1991, petitioner caused his attorney, Mr.

6. Black's Law Dictionary (4th Ed. 1951) defines abandonment as follows:
“(T]he giving up of something absolutely, without regard to what eventually happens to
the property, such as throwing a jewel onto the highway.” /d. at9.

15

Bernstein, to commence re-negotiations for the lease, at which
time petitioner was incorrectly informed by the landlord that the
“status quo” of his property was being maintained (App. 27a).

The governent’s argument, accepted by the Third Circuit, that
it did not need a search warrant to seize petitioner’s property
because he had been involuntarily locked out by his landlord is,
even if true — immaterial since an abandonment is determined by
reviewing the property owner's (petitioner's) intent, not the
landlord’s intent. Although there are occasions when the validity
of a third party’s consent to a search has been upheld, this
exception must be applied guardedly to prevent erosion of the
protections of the Fourth Amendment. In United States ex rel.
Kabey v. Mazurkiewicz, 431 F.2d $39 (3d Cir. 1970), for example,
the defendant was convicted of aggravated robbery, based on
evidence seized inside a garage rented solely by the defendant.
Detectives entered the garage, where they located the gun after
receiving consent to search from the defendant’s wife. Defendant
kept the only key to the garage on his key ring and had never
permitted the key to be in his wife’s possession. Based on the above
facts, the Third Circuit ruled “... the search invalid on the grounds
that the wife did not have. .. authority to consent to the search nor
any independent legal right of herowntodoso...” /d. at 841.

The facts of the instant case are even more compelling than
those of Mazurkiewicz, particularly since the government has
failed to produce any evidence that the petitioner relinquished his
key to the locked filing cabinets. In fact, the government did not
even bother to use a key, choosing rather to drill open the locks.

A forcible lock-out by its very nature vitiates any intent to
voluntarily abandon the premises, absent proof by the government
that petitioner had the financial means to cure the rent arrearage but
was willfully refusing to do so. United States v. Robinson, 430 F.2d
1141 (6th Cir. 1970). See also, Brodsky v. Phila. Athletic Club, 277

SS

16

Pa. Super. 49, 419 A.2d 1285, 1288 (1980). The Third Circuit’s
ruling erroneously presumes that petitioner willfully refused to
pay rent, without any record evidence. To the contrary, the record
below contains ample evidence of petitioner’s good faith efforts to
clear up the possession dispute with his landlord and to maintain
his expectation of privacy in the premises.

B. The landlord’s unconstitutional use of the distraint statute in
locking petitioner out of the premises without notice vitiates any
evidence of a willful abandonment.

In United States v. Hossbach, 518 F. Supp. 759 (E.D. Pa.
1980), the government took the position that non-payment of rent,
coupled with consent of the landlord, constituted an abandonment,
and thereby vitiated the requirement that a search warrant be
obtained. With respect to the question of the landlord’s right to
seize the tenant’s personal property, the Hossbach court stated:

The landlord does not have the right to
personal property left on the premises except
by way of distraint for rent. Landlord and
Tenant Act of 1951, 68 P.S. § 250.320.

(Emphasis added.) In absence of clear proof of abandonment,
regardless of the right of the landlord to enter the premises or to
permit the DEA agents to enter, the landlord had no right to permit
agents to seize, without a warrant, the personal property of the
defendant. /d. at 768.

As in Hossbach, the absence of a formal distraint is significant
here.’ In order to commence a distraint action in Pennsylvania, a
landlord must provide written notice of any distraint to the

7. Under Pennsylvania statutory law, alandlord does not own, orhave aright to
transfer, the tenant’s property.

17

tenant within five days after making such distraint. 68
Pa.C.S.A. § 250.302. It is without question that petitioner never
received — nor could he have received — notice of the distraint
because he could not access the 30th floor of the building® (App.
40a).

This Court addressed the validity of a landlord’s consent to
search the premises of a tenant out of possession in Chapman v.
United States, 365 U.S. 610, 81 S. Ct. 776 (1961). In Chapman, the
defendant was convicted of illegally operating a distillery based
upon evidence seized by police during a search of premises rented
by the defendant. The police officers relied on the consent of the
landlord given because he smelled an odor of “whiskey mash”
coming from inside the rented premises.This Court held that the
evidence should have been suppressed because the officers “...
(h]ad an abundant opportunity to obtain a warrant and to proceed in
an orderly way even after the odor had emphasized their
suspicions; there was no probability of material change in the
situation during the time necessary to secure such a warrant.”? /d.
at 779-780.

8. In addition to the landlord’s failure to comply with the distraint statute's
notice-requirement, the Pennsylvania distraint statute provision for an ex parte seizure
prior to notifying the tenant has been held to violate due process. Allegheny Clark Lift
Inc. v. Woodline Industries of Pennsylvania, Inc., 356 Pa. Super. 269, 514 A.2d 606
(1986).

9. The government has not offered any reasons for its failure to obtain a search
warrant, especially in light of the fact that

“ no suspect was fleeing or likely to take flight ....
The search was of permanent premises, not of a moveable
vehicle... . [No evidence or contraband was threatened
with removal of destruction.]” /d. at 81, S.Ct. at 779. In
fact, the agents had received assurances from the
Binswanger Management that they would nor dispose of
the property without notifying them in advance (App.
19a).

18

In the instant matter, the government agents’ testimony
unmistakably established that they had ample time to review
petitioner’s records. In fact, they made plans to return and seize
them the next day (App. 13a, 14a, 15a). In Chapman, this Court
explained why evidence obtained in this fashion must be
suppressed:

The point of the Fourth Amendment, which
often is not grasped by zealous officers, is not
that it denies law enforcement the support of
the usual inferences which reasonable men
draw from evidence. Its protection consists
from requiring that those inferences be drawn
by a neutral and detached magistrate instead
of being judged by officers engaged in the
often competitive enterprise of ferreting out
crime.

Id. at 779, 81 S. Ct. at 779 (emphasis added).

In the present case, the government agents improperly
manipulated the Lewis Tower Building personnel, rather than
seeking the approval of a neutral and detached magistrate as
required by the Fourth Amendment.

C. Theconsenttosearch obtained by the government was invalid
because petitioner had been forced out of the premises, and
petitioner’s property should therefore be returned.

In United States v. Robinson, 430 F.2d 1141 (6th Cir. 1970),
the court ruled that an abandonment must be clearly shown by the
party asserting it, and, though intent may be inferable from actions,
an abandonment will not be presumed. /d. at 1143; see also, United
States v. Minker, 312 F.2d 632 (3d Cir.), cert. denied, 372 U.S. 953,
83 S.Ct. 952 (1963).

———~

19

In Robinson, the defendant’s building manager, considered
the apartment abandoned because the defendant had been absent,
without having paid any rent, for over one month’s time. Based on
the consent of the building manager, FBI agents entered the
apartment and seized clothing which was subsequently used as
evidence to convict him of armed robbery. On these facts, the Sixth
Circuit held the building manager’s consent was invalid, and that
the evidence should have been suppressed. The facts of Robinson
are directly on point with the instant matter, and the Sixth Circuit’s
reasoning is persuasive. Petitioner submits, therefore, that the
Third Circuit’s decision conflicts with prior decisions of the
various Circuits and this Court, including Chapman.

The government’s argument that the petitioner made no
efforts to obtain his property until after he had learned of the
seizure is not supported by the evidence presented below. For
example, prior to the petitioner’s knowledge that the items had
been seized, he entered into a new settlement to gain access to the
property, which included “storage charges” — for property which
had already been seized by the government (App. 28a, 29a)."°
Obviously, a tenant would not agree to pay storage charges if he
had already voluntarily relinquished his rights to that property."

10. Copies of two checks — one for $28,817, which included storage charges
and a second for $9,300 representing anew security deposit — are Appendix I, Exhibit
“D-2” from the District Court Hearing on August 1, 1991.

11. Itshould also be noted that in addition to maintaining all of his records in
locked cabinets — some of which were privileged litigation records and documents in
pending civil actions — the petitioner maintained a working telephone at the location in
question during the entire period from the December 17, 1990, lockout through the date
of the unlawful search on March 4, 1991 (App. 31a).

20

D. A separate search warrant should have been obtained by the
government to search each separately secured filing cabinet inside
petitioner’s premises.

A search occurs when there is an infringement of an
expectation of privacy that society is prepared to consider
reasonable. United States v. Jacobson, 466 U.S. 109, 104 S .Ct.
1652 (1984). In Jacobson, the government suppressed evidence
seized in a search of a separate and secure box in the possession of
the defendant, who had been arrested for unlawfully hunting on
protected land.This Court held that the search warrant requirement
of the Fourth Amendment was applicable to personal luggage
taken from automobiles and that, barring exigent circumstances,
officers could not conduct a warrantless search of locked luggage.
Therefore, the items in the hunting box also were suppressed.'*
Fd., 104S .Ct. at 1658.

The record below is barren of any exigent circumstances. In
fact, the agents were so relaxed, after breaking petitioner’s door
open, that they merely browsed through petitioner’s documents
and determine to return the next day to cart his items off to a
warehouse (App. 13a, 14a, 15a). The government’s final argument
in Jacobson, also rejected by this Court, was that, since the box in
question did not contain a lock, there should have been no
expectation of privacy. Here, by contrast, it is undisputed by the
parties that petitioner’s filing cabinets were locked when the agents
conducted the search in question.

12. This Court in Jacobson also rejected the argument that the box had been
abandoned, citing United States v. Sanders, 719 F.2d 882 (6th Cir. 1983). There, a bag
and luggage, left at the airport, was held not to be abandoned because the government
had failed to meet its burden of proof that the party had intended to relinquish his
expectation of privacy in the items seized.

21

Ill.
OVERBREADTH

A. The grand jury subpoena demanding all of the records of
Amin A. Rashid & Associates was unconstitutionally overbroad
because it failed to particularly describe either the items to be
seized or the probable-cause basis for the seizure.

The burden is on the government to establish that the seizure
complied with the requirements set forth in Fed. R. Crim. P. 41(e)
and the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S.
218, 935 S. Ct. 2041 (1973); United States v. Kane, 637 F.2d 974
(3d Cir. 1981). It was the government’s burden to establish the
basis for the issuance of the subpoena, and that it was in fact
executed pursuant to requisite constitutional safeguards. See, e.g.,
United States v. Quartermain, 467 F. Supp. 782 (E.D. Pa. 1979).
On the record below, the government has failed to meet its burden
of proving that the seizure of the petitioner’s seizure of the
property without a search warrant was lawful.

The Fourth Amendment is applicable to a Rule 41(e) motion
since such a motion is to be treated as a motion to suppress under
Fed. R. Crim. P. 12. In Re Grand Jury Proceedings, 716 F.2d 493
(8th Cir. 1983) (Rosenn, J., sitting by designation). The Fourth
Amendment clearly requires a particular description of the place to
be searched and the person or things to be seized. The grand jury
subpoena at issue provides nothing more than the following broad
description: “Any and all documents, files and computerized
records of Amin Rashid Associates.” The language of this
subpoena is so overbroad that it amounts to nothing more than a
“general search warrant,” and, as such, is clearly an
unconstitutional and impermissible act of the government.
Andersen v. Maryland, 427 U.S. 463, 96S. Ct. 2737 (1976). Hence,
certiorari is appropriate to review the Third Circuit's
misapplication of the Fourth Amendment. From the face of the

22

present grand jury subpoena, it appears that the government merely
conducted a “fishing expedition”. As stated by this Court, “[A]
Grand Jury’s subpoena duces tecum will be disallowed if it is far
too sweeping in its terms to be regarded as reasonable under the
Fourth Amendment.” United States v. Calandra, 414 U.S. 338, 94
S.Ct. 613 (1974).

The government may not conduct a search solely for the
purpose of securing evidence to be used as proof that a crime has
been committed. Rather, the Fourth Amendment requires that the
reason for the search and the nature of the contraband sought
appear in the affidavit which is presented to a neutral magistrate.
United States v. Sigal, 341 F.2d 837 (3d Cir.), cert. denied, 382 U.S.
811, 86 S. Ct. 23 (1969). A grand jury subpoena is not the
“[t]alisman that dissolves all constitutional protections.” United
States v. Schwartz, 457 F.2d 895, 898 (2d Cir.), cert. denied, 410
U.S. 941, 93 S. Ct 1376, 35 L. Ed. 2d 608 (1973). Petitioner
submits that the record below lacks any adequate basis for the
issuance of the subpoena,'’ as well as any proof of proper execution
thereof.

Searches conducted without a warrant are per se unreasonable
under the Fourth Amendment, except in a few well delineated and
narrowly circumscribed exceptions. Michigan v. Tyler, 436 U.S.
499, 98 S. Ct. 1942 (1978). When a person alleges a deliberate
bypass of the warrant requirement, and there is evidence “... [t]hat
a realistic opportunity existed to produce one, the government
must come forward with objective evidence tending to justify the
deviation from the normal police procedure; subjective good faith
on the part of the authorities cannot suffice as a complete defense

13. Although petitioner refers to the lack of probable cause in relation to the
issuance of the subpoena, the circumstances surrounding the execution of this subpoena
were tantamount to a full-blown search, requiring a warrant to be issued by a neutral and
detached magistrate.

23

due to failure to obtain a warrant.” United States v. Chuke, 554 F.2d
260, 264 (6th Cir. 1977). Certiorari should be granted because the
Third Circuit’s decision below conflicts with sister Circuits on
protection of a fundamental constitutional right.

In the case sub judice, the government agents knew as early as
January 25, 1991 (more than a month prior to the search) that
petitioner had been forced out of his office at the Lewis Tower
Building (App. 9a). Agent Hazelton specifically admitted visiting
petitioner at his temporary address, 1424 Chestnut Street, on
January 25, 1991 (App. 9a). Because the government had more
than a month’s time to properly secure a search warrant, but failed
to do so, it cannot now credibly claim the existence of any exigent
circumstances. In the case sub judice, the government has failed to
establish any justification for its failure to obtain a warrant, or at a
minimum to notify petitioner of the search. The government's
conduct constituted an unlawful search and seizure under the
Fourth Amendment.

IV.
EXECUTION

A. The government’s failure to knock and announce their
presence and the purpose of their entry requires the return of
petitioner’s property under Rule 41(e).

The government below admitted to forcing open petitioner's
office door with a screw driver and drilling open his locked filing
cabinets (App. 15a).

In the instant case, government agents Hazelton and Williams
had a duty tocomply with 18 U.S.C. § 3109 (1991), which provides

ii pertinent part as follows:

The cfficer may break open any outer or inner

|

24

door or window of a house, or any part of a
house, or anything therein, to execute a search
warrant, if, after notice of his authority and
purpose. he is refused admittance or when
necessary to liberate himself or a person
aiding him in the execution of the warrant.

(Emphasis added.) Absent exigent circumstances, a police
officer’s failure to wait until he is refused admittance, before
breaking open even the front screen door of the defendant’s
premises, for purposes of executing a search warrant, has been held
illegal, and the evidence seized therein during a subsequent search
is inadmissible. United States v. Goldstein, 416 U.S. 943,948. Ct.
1951 (1972).

In United States ex rel. Ametrane v: Gable, 401 F.2d 765 (3d
Cir. 1968), police officers had both a search warrant and an arrest
warrant but failed to announce the purpose of their entry. Instead,
the officers inserted a crowbar into the defendant’s door, causing
the defendant to open the door to avoid further damage. The Third
Circuit ruled that the entry was illegal, and the evidence seized
thereafter was inadmissible at trial because a person must be given
a reasonable opportunity to“... surrender his privacy voluntarily,
and police conduct forcibly eliciting such a waiver is
unconstitutional.” Jd. at 766. See also, Commonwealth v.
DiMichael, 442 Pa. Super. 553, 277 A.2d 159 (1971) (lapse of ten
to fifteen seconds between the announcement by the police and
their unconsented forcible entry was not sufficient).

The purpose of the rules requiring government agents to
announce themselves before searching an individual’s premises is
to protect that person’s privacy rights by permitting him to
surrender his property with dignity, rather than having it forcibly
seized by government agents. Commonwealth v. Cerulla, 223 Pa.
Super. 24, 296 A.2d 858 (1972). In the instant case, government
agents clearly were aware of petitioner’s temporary address made

|

25

no effort to notify petitioner of their intent to search the subject
premises. Finally, the government’s failure to permit petitioner to
be present during the seizure was a clear violation of petitioner’s
rights.

V.
FIFTH AMENDMENT

A. The government may not circumvent the safeguards of the
Fourth and Fifth Amendments by unlawfully seizing petitioner’s
records and compelling him to appear and reclaim his records,
thereby authenticating contents thereof in violation of the Fifth
Amendment.

The United States Supreme Court has often stated “[t]he
importance of preserving inviolate the privilege against self-
incrimination.” Miranda v. Arizona, 34 U.S. 436, 86 S. Ct. 1602,
(1966); Malloy v. Hogan, 378 U.S. 1, 84S. Ct. 1489 (1964). The
Fifth Amendment “... respects a private inter sanctum of
individual feeling and thought and proscribes state intrusion to
extract self-condemnation.” Couch v. United States, 409 U.S. 322,
93 S.Ct. 611 (1973). The privilege against self-incrimination may
be invoked by a sole proprietorship in response to grand jury
subpoenas duces tecum for its business related records. Matter of
Grand Jury Impaneled March 19,1980, 680 F.2d 327, 321 (3d Cir.
1982). In that case, the Third Circuit was confronted with a similar
factual situation to that presently before this Court. The appellee
received five separate grand jury subpoenas demanding that he
appear before a grand jury and produce certain records. These
subpoenas were issued pursuant to a federal grand jury
investigation relating to corruption in awarding county and
municipal contracts. The recipient o1 the subpoena was directed to
provide “all records relating to two of Appellee’s companies,
including ledgers, journals, work papers, vouchers, bank

26
statements, contracts, corporate minutes, etc. ...” /d. at 328.

The Third Circuit upheld the District Court’s order quashing
the grand jury subpoena with respect to all items relating tothe“...
sole proprietorship of the Appellee, other than copies of his tax
returns and W-2 statements which are required by law to be kept.”
Id. at 329. The court further stated: “[I]t is clear that, under the
present state of the law, the Fifth Amendment may be invoked by a
sole proprietorship regardless of the magnitude of the business.
...” Id. at 330.

Here, because petitioner’s records are already (unlawfully) in
possession of the government, petitioner is faced with no other
choice but to retrieve his personal documents in order to carry on
his livelihood, thereby providing the government with
incriminating evidence as to authentication. The government’s
mere assertion that the possession and authenticity of the
documents can be proven without the petitioner’s testimony is not
satisfactory to establish that appellee will be protected in
subsequent proceedings. /d. at 336

The Fifth Amendment protects the act of producing
subpoenaed documents since such act is authenticative and,
therefore, incriminating. Fisher v. United States, 425 U.S. 391, 96
S.Ct. 1569 (1976). Assuming, arguendo, that this Court would not
find the contents of petitioner’s documents to be privileged, “...
[t]he mere act of producing the documents may be considered a
communication having testimonial significance as an admission
that the subpoenaed records exist... [thereby authenticating
them].” /n re Grand Jury Impaneled (Colucci), 579 F.2d 851, 861
(3d Cir. 1979). More importantly, the government has not
contested that the contents of these papers are potentially
incriminating. Therefore, petitioner is not required to present any
further evidence to establish that“... that the privilege is properly
claimed.” Jn re Grand Jury Impaneled (Markowitz), 603 F.2d 469,

477 (3d Cir. 1979).

The “... Fifth Amendment privilege against compulsory self-
incrimination protects an individual from compelled production of
his personal papers and effects as well as compelled oral
testimony.” Bellis v. United States, 417 U.S. 85,87, 94S. Ct. 2179,
2182 (1975). In the case of Jn re Grand Jury Proceedings, 632 F.2d
1033 (3d Cir. 1980), the Third Circuit declined to enforce a grand
jury subpoena requesting production of “... an appointment book
for the years 1979, 1980, ...[from a defendant under
investigation] ... because production [thereof] would violate his
Fifth Amendment rights... .” Jd. at 1042. In the case sub judice,
many of the documents seized by the government involved private,
privileged and personal documents that were seized unlawfully."
(App. 48a). Therefore, this Court should grant the within petition
to afford petitioner with appellate review of the Third Circuit’s
erroneous holding.

Although petitioner sometimes operates under the letterhead
Amin A. Rashid & Associates, Inc., he conducts his business as a
sole proprietor. In fact, on March 1, 1991 (three days before the
search), the State of Delaware terminated the legal entity known as
Amin A. Rashid Associates, Inc. Furthermore, if“... incriminating
documents [are] held in en individual capacity, as opposed to a
representative capacity [this] prevents the Government from
subpoenaing [those documents]... .” United States v. (Under
Seal), 475 F.2d 834, 840 (4th Cir.), vacuted as moot, 471 U.S. 1001,
105 S. Ct. 1861, 85 L. Ed. 2d 155 (1985). Although the Fifth
Amendment generally does not apply to the contents of documents
which were voluntarily prepared, unless they are private or
privileged, coerced production of such documents by the

14. Appellant also maintains that a number of the documents seized by the
government are covered by the attorney/client privilege. These should be returned to
prevent further unwarranted disclosure thereof (App. 48a).

ee

28

government, to provide evidence of authentication, is clearly
violative of the Fifth Amendment.’ To permit the government to
extract this type of authentication would be to allow it to do
“indirectly” that which it is prohibited from doing “directly.”'®

CONCLUSION

For the foregoing reasons, and in order to provide appellate
review of the government’s gross violation of petitioner's
fundamental rights and the Third Circuit’s approval thereof,
petitioner respectfully requests this Court to grant petitioner’s
request for certiorari.

Respectfully submitted,

G. ALEXANDER BOCHETTO
MONTEVERDE, HEMPHILL,
MASCHMEYER & OBERT, P.C.
Attorneys for Petitioner

2230 The Fidelity Building

123 South Broad Street
Philadelphia, PA 19109-1022

1S. See Fisher, supra.

16. Petitioner acknowledges that his Fifth Amendmentassertions will become
moot if this Court grants petitioner's Rule 41(e) motion, because all such evidence
would thereafter be inadmissible in any subsequent criminal proceeding. /n re Grand
Jury Proceedings, 716 F.2d 493 (8th Cir. 1983).

a ciate

la

APPENDIX A — ORDER OF THE THIRD CIRCUIT COURT
OF APPEALS EN BANC DENYING PETITIONER’S
REQUEST FOR REHEARING ISSUED MAY 18, 1992

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 91-1729
IMPOUNDED

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 90-00844-2)

SUR PETITION FOR REHEARING

PRESENT:
SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, HUTCHINSON, SCIRICA,
COWEN, NYGAARD, ALITO, ROTH == and
HIGGINBOTHAM, Circuit Judges

The petition for rehearing filed by appellant in the above
captioned matter having been submitted to the judges who
participated in the decision of this court and to all the other
available circuit judges of the circuit in regular active service, and
no judge who concurred in the decision having asked for rehearing,
and a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc, the
petition for rehearing is denied.

By the Court,

2a

Appendix A

s/ William D. Hutchinson
Circuit Judge

Dated May 18, 1992

Senior Circuit Judge Higginbotham was limited to voting for panel
rehearing.

3a

APPENDIX B — ORDER OF THE THIRD CIRCUIT COURT
OF APPEALS DISMISSING PETITIONER’S APPEAL FOR
LACK OF JURISDICTION ISSUED MAY 16, 1992

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 91-1729
IMPOUNDED
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 90-00844-2)
District Judge: Honorable Ronald L. Buckwalter

Argued: March 9, 1992

PRESENT: HUTCHINSON, ALITO, and HIGGINBOTHAM,
Circuit Judges

JUDGMENT ORDER

After consideration of the contentions raised by appellant,
It 1S

ADJUDGED AND ORDERED that the appeal is dismissed
for lack of appellate jurisdiction. See United States v. Furina,
707 F.2d 82 (3d Cir. 1983).

Costs will be taxed against appellant.

By the Court,

4a

Appendix B

s/ William D. Hutchinson
Circuit Judge

ATTEST:

S/ Sally Mrvos
Sally Mrvos, Clerk

Dated March 16, 1992

Sa

APPENDIX C — ORDER OF THE DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA DENYING
PETITIONER’S RULE 41(e) MOTION ISSUED
AUGUST 8, 1991

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GRAND JURY NO. 90-844-2

AMIN A. RASHID

UNITED STATES
ORDER

AND NOW, this 8th day of August, 1991, after a hearing
having been held and upon consideration of the briefs filed by
the parties hereto, the motion and supplemental motion for return
of seized property pursuant to Rule 41(c) of the Federal Rules
of Civil Procedure are DENIED.

BY THE COURT:

s/ Ronald L. Buckwalter
RONALD L. BUCKWALITER, J.

[stamped]
A TRUE COPY CERTIFIED TO FROM THE RECORD
DATED: 8/8/91
ATTEST: s/ Mary L. McKenna
Deputy Clerk,
United States District Court
Eastern District of Pennsylvania

6a

APPENDIX D. — TRANSCRIPT OF DISTRICT COURT

HEARING BEFORE HONORABLE JUDGE BUCKWALTER

GRANTING PETITIONER INTERVENOR STATUS
RECORDED JULY 18, 1991

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NO. GJ 90-844-02

Philadelphia, Pennsylvania
July 18, 199]

9:00 a.m.
RASHID
Plaintiff
.
UNITED STATES OF AMERICA
Defendant

HEARING
BEFORE THE HONORABLE RONALD L. BUCKWALTER
UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: ALAN A. TURNER, ESQUIRE
Rutter, Turner, Solomon &
DiPiero

Suite 750, The Curtis Center
Independence Square West
Philadelphia, PA 19106

i i aa

Appendix D
For the Defendant: THOMAS SUDDATH, ESQUIRE
Assistant U.S. Attorney
Room 3310, U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
Audio Operator: Lisa McFarland

Transcribed by: Paula L. Curran

(Proceeding recorded by Electronic Sound Recording;
transcript produced by computer-aided transcription service.)

[2] (Whereupon the following occurred in open court at 9:00
o’clock a.m.)

THE CLERK: All rise.
THE COURT: Good morning. Please be seated.
ALL: Good morning, your Honor.

THE COURT: I understand there is some need for testimony
here?

MR. SUDDATH: Well, your Honor, good morning. Thomas
Suddath on behaif of the Government. If I could be heard briefly,
your Honor, I believe I might be able to expedite matters.

THE COURT: All right.

MR. SUDDATH: Your Honor, there have been numerous
pleadings that have been filed with the Court regarding the —

8a

Appendix D

Mr. Rashid’s motion for return of property. Notwithstanding the
numerosity of the pleadings, the Government’s position is that
this matter simply rests on the issue of whether or not the
documents that were obtained were properly obtained pursuant
to a Grand Jury subpoena issued to a third party, who is in
possession of the documents where the Gavernment was not
involved in having the third party gain possession of the documents
which were subsequently obtained from the Grand Jury subpoena.

If so, the Court answers that question affirmatively, then
there is no need to address the issues of [3] —- for which testimony
would be presented, specifically, the issues of abandonment,
distraint, constitutionality of the distraint statute, et cetera. As
the Government understands Mr. Rashid’s motion, it’s based upon
a Fourth Amendment claim that his Fourth Amendment rights
were violated, allegedly because the Grand Jury subpoena that
was issued was a protectural Grand Jury subpoena, done in an
effort to cover up an alleged, warrantless search of third party
premises.

In the Government’s brief it cited numerous cases from the
Supreme Court and from the Third Circuit.

THE COURT: Is this a shortcut? And even if your position
is correct, doesn’t — isn’t there a requirement that testimony be
presented here if the party challenging the seizure wished to
challenge it?

MR. SUDDATH: Well, there may be a requirement for some
testimony to be presented, but not on the issues of abandonment
and not on the issues of distraint and not on the issues of the
landlord. Simply, the Government would submit that the factual
issues that the Court must decide is simply whether or not there

9a

Appendix D

was any Government wrongdoing or complicity in the third party
gaining access or possession of the records which were subpoenaed
by the Government. The Government could either proffer that
testimony or put an agent on for very brief testimony on that issue.

If the Court decides after hearing that testimony [4] that there
is no Government complicity or wrongdoing, then under the cases
cited by the Government in its brief this issue can be decided on
that basis and there is no need to get into the issues of
abandonment or the distraint or the constitutionality of the
Pennsylvania Distraint Statute.

That’s the Government’s position with regard to this matter.
If the Court would like, I could either proffer testimony or put
an agent on the stand.

THE COURT: Now, let me hear what Mr. Turner has to
say here before we go any further. Mr. Turner?

MR. TURNER: Good morning, your Honor. For the record,
Alan Turner on behalf of movant and intervenor, Mr. Rashid.

First, let me say, your Honor, that I have not yet received
and I think, the Government has not filed an opposition to the
petition for intervention. Mr. Suddath may, in-~fact, have
determined to consent to our intervention in the subpoena. I don’t
want to state his position, so.

MR. SUDDATH: Your Honor, for the purposes of this
hearing, the Government will — will not close his motion for
intervention because under authority from the Third Circuit, |
believe Mr. Rashid may properly served grounds for intervention
in this matter.

10a

Appendix D
THE COURT: All right.

MR. TURNER: Thank you, Mr. Suddath. Your Honor, [5]
let me begin compilation of today’s record, if I might, by reciting
three stipulations of fact which Mr. Suddath and I have entered
into, which may advance and shorten the inquiry.

Number one, the Tranol(ph) subpoena, which is the subpoena
affixed as an exhibit and under which authority is claimed, no
notice of that subpoena was given to Mr. Rashid or to Ahmin
A. Rashid and Associates, a proprietorship. That subpoena —
I’m sorry.

Number two, a separate and distinct Grand Jury subpoena
was served upon Mr. Rashid at his office at 1424 Chestnut Street,
Philadelphia, Pennsylvania, on February 4, 1991. This, of course,
your Honor, is after the lock-out of the December 17, 1990 and
is in advance of the Government’s seizure or acquisition of the
Rashid and Rashid and Associates records on March 5 or March
6 or March 5, depending upon how one views the critical dates.

The third stipulation is that Government agents of unknown
identity to me, found three locked pieces of furniture containing
documents, two of which were file cabinets, one of which was
a bookcase. And the locks were drilled by Government agents,
SO aS to gain access to the contents of the file cabinets and the
bookcase.

Is that correct, Mr. Suddath?
MR. SUDDATH: That’s correct, your Honor. Of the pieces

of furniture that were containing documents, there [6] were a total
of 17 pieces of furniture. Three of the 17 were locked and the

lla

Appendix D

Government gained access to these by drilling locks. Each of these
pieces of furniture, to my understanding, was the property of
Binswanger, the leasing and management agent for the landlord.

THE COURT: Is that part of the stipulation?
MR. TURNER: That is not part of the stipulation.
THE COURT: Okay. That’s okay.

MR. TURNER: Mr. Suddath’s comments are not part of
the stipulation, no.

THE COURT: All right.

MR. TURNER: Your Honor, with respect to the law
applicable, I have present in court witnesses so as to establish
that there was no abandonment of property by Ahmin A. Rashid
or Ahmin A. Rashid and Associates, and | am prepared to present
that testimony today.

Those witnesses consist of two lawyers, a rental agent for
the property and the building manager, each of whom, | believe,
have evidence which bears upon that question and will demonstrate
Mr. Rashid’s continuing efforts to regain possession of the
questioned records.

The Government take the position that the abandonment issue

THE COURT: Is that the only witnesses you have? As far
as —

Appendix D

[7] MR. TURNER: Yes, although those, at least one of those
witnesses will also discuss, at least briefly, his observations
concerning the gaining of access to the records by the Government
agents. That relates, your Honor, to the second point which is
whether a subpoena, such as that, was issued in this case, the
Tranol subpoena implicates the Fourth Amendment concerns. We,
of course, take the position that under Hosback, in this district,
Judge VanArtsdalen and under Barr and Numu(ph), each of which
are cited and discussed somewhat extensively in the moving papers
and specifically the second brief of Mr. Rashid, the consolidated
memorandum. We will demonstrate, we think, that what we have
here is not subpoena compliance but rather a search and a seizure.
And i think we need evidence to build a record on that, your
Honor.

THE COURT: All right, now —

MR. TURNER: I’m aware that the Court has a trial schedule
to commence at 9:30 —

MR. TURNER: Yeah.

MR. TURNER: — And I’m, cf course, at the Court’s
convenience in respect to a hearing.

THE COURT: Yes, that’s the only concern I have, here,
is that we — I thought, based on some communication last week,
about this case, it wasn’t going to be testimony taken or I would
have continued this.

[8] MR. TURNER: Oh, that wasn’t with me, your Honor.
I got no communication from your Honor’s chambers.

Appendix D

THE COURT: Did — were you in communication with my
chambers?

MR. TURNER: No, not at all, your Honor.

THE COURT: Oh, well, then maybe, there was a
misunderstanding here.

MR. TURNER: I think I can explain what happened. A Mr.
Boccheto(ph) has been engaged by Mr. Rashid to pursue an appeal,
your Honor. The caption of that case is Public Savings Association
versus Rashid, pending in the Superior Court of Pennsylvania.
Those files were part of the seizure. Interestingly, of course, this
subpoena to Tranol, requested the records of Rashid and
Associates, but of course, the file of Rashid as a defendant in
Public Service would not be a Rashid and Associates file, pertinent,
of course, to the seizure issue.

THE COURT: Okay, I understand now. I understand what
has happened and why there was a mix-up. And it was a mix-up
on my part and they —

MR. TURNER: But he needed a file to file a reply brief.
My apologies, your Honor.

THE COURT: — well, the unfortunate part of that is, that
I, therefore, did not expect to have a hearing and testimony today.
And it would be my inclination that it [9] would be more
appropriate to re-schedule this at a fixed time. And then we'll
be prepared to take testimony. And from what you’re telling me,
we need a morning, we Ought to set aside, at least, a morning.

MR. TURNER: I think it’s going to take a morning, Judge,

Ida

Appendix D
to build a record on this case —
THE COURT: That, at least, would —

MR. TURNER: — so that the Court can properly consider
my side of it.

THE COURT: — yeah, okay. So, | think that that would
be the better way to do it than try to rush this thing through.
And I'll have to consult my deputy clerk as to an appropriate time.

MR. TURNER: All right, well, [ll just re-issue the subpoena,
as previously issued then, to re-collect the witnesses.

THE COURT: When you find out when the hearing is going
to be.

MR. TURNER: After I find out what the date is.
THE COURT: Obviously, yes.

MR. TURNER: If I knew the date, I was going to ask if
the Court might indulge me by directing such witnesses to be
present, but, if that’s not convenient for the Court, I’ll simply —

THE COURT: I'll tell you, it might be difficult to [10] do
that because of the length of this trial and some other matters
that are going on. So, I’ll just have to set, after I discuss it with
my courtroom deputy, we’ll set the time again.

MR. TURNER: And of course, our apologies for the
misunderstanding of scheduling this morning, your Honor.

ha aceeeneemninieneeiaensetaeiiienamenaiiilll

lSa

Appendix D

THE COURT: Well, that’s all right, you don’t have to
apologize, that was just a misunderstanding and we'll re-schedule

the hearing.

MR. TURNER: Very well. We’ll look forward to seeing you
at that time, Judge.

THE COURT: All right. All right, thank you
(Court adjourned at 9:20 o’clock a.m.)
CERTIFICATION

| hereby certify that the foregoing is a correct transcript from
the electronic sound recording of the proceedings in the above-
entitled matter.
s/ Geraldine C. Laws 8/21/91
Geraldine C. Laws

Laws Transcription Service

S/ Pauia Curran
Paula Curran

l6a

APPENDIX E — TRANSCRIPT OF DISTRICT COURT

HEARING SUR RULE 41(e) MOTION BEFORE THE

HONORABLE JUDGE BUCKWALTER RECORDED
AUGUST 7, 1991

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NO. GJ 90-844-02

Philadelphia, Pennsylvania
August 7, 1991

AMID RASHID

UNITED STATES OF AMERICA

GRAND JURY HEARING
BEFORE THE HONORABLE RONALD L. BUCKWALTER
UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: ALAN TURNER, ESQUIRE
Suite 750, The Curtis Center
Independence Square West
Philadelphia, PA 19106

For the Government: THOMAS SUDDATH, ESQUIRE

Assistant U.S. Attorney
3310 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106

nh

17a

Appendix E
Audio Operator: Jacqueline Knoll
Transcribed by: Grace Williams

(Proceedings recorded by Electronic Sound Recording;
transcript produced by computer-aided transcription service.)

[2] (Whereupon the following occurred in open court at 1:35
o’clock p.m.:)

THE COURT: Good afternoon. Please be seated.

MR. TURNER: Good afternoon, your Honor.

MR. SUDDATH: Good afternoon.

THE COURT? Are we ready to proceed with testimony?
MR. TURNER: We are, your Honor.

MR. SUDDATH: We are, your Honor.

THE COURT: Okay, call your witness, witnesses.

MR. SUDDATH: Your Honor, I guess the Government will
proceed first.

THE COURT: You may proceed first.

MR. SUDDATH: Your Honor, the Government calls Special
Agent Carol Hazelton.

Your Honor, I would ask for sequestration at this time.

18a

Appendix E

THE COURT? All witnesses who are testifying are
sequestered.

MR. TURNER: Your Honor, of course, Mr. Rashid —
THE COURT: Government as well as defense witnesses.
MR. TURNER: I’m sorry?

THE COURT: Government of course as well as defense
witnesses will be sequestered.

MR. TURNER: But of course Mr. Rashid may remain in
the courtroom, your Honor?

[3] THE COURT: He may remain.

MR. TURNER: In that event I would ask that Special Agent
Williams of the FBI be sequestered.

THE COURT? All right, if she’s going to testify.
CAROL HAZELTON, Government Witness, Sworn.

THE AUDIO OPERATOR: Please be seated. State and spell
your full name for the- record.

THE WITNESS: Okay, my full name is Carol C-a-r-o-l
Hazelton, H-a-z-e-l-t-o-n.

MR. SUDDATH: Your Honor, one preliminary matter. It
may not apply at this point, but just out of an abundance of
caution, the Government would request closure of the proceedings

CGO EE

19a

Appendix E

under Federal Rule of Criminal Procedure 6(E) to the extent it’s
necessary to prevent disclosure of matters occurring before the
Grand Jury.

As I look about the courtroom, we do have a legal intern
from the United States Attorney’s Office present, but I just wanted
the record to be clear that the Government is requesting that.

MR. TURNER: I have no objection to that procedure, your
Honor, but I would ask that an order be entered allowing counsel
to obtain a copy of the transcript of these proceedings. I had
a bit of a problem with that, as the Court may be aware, last time.

THE COURT: Well, I’m not aware of what problem you
[4] had with that, but if you have to file a motion to do so, go
ahead.

Let’s proceed with the hearing here, gentlemen, let’s go.

MR. SUDDATH: Your Honor, may I just digress for one
more brief moment? The Government has filed several pleadings
in this case and Mr. Turner has also filed several pleadings? As
the Government set forth in its supplemental pleading, in the
Government’s view the issue before the Court is narrow and the
case of the Burrell case or Burrell case from United States Supreme
Court controls this matter.

I have — I could sculpture the agent’s testimony to be limited
to that issue or expand it, depending upon the Court’s view of
whether the proceedings should get into the issues of the
abandonment, strength, constitutionality of the statute? As the
Government set forth in its supplemental motion, we believe the
issue is very narrow and should the Court decide that the propert

20a
Appendix E

issue 1s very narrow and should the Court decide that the property
that was obtained by the Government —

THE COURT: Well, let me just put it this way: unless I can
be convinced otherwise, I think the issue is narrow, also, so you
may proceed as you deem appropriaie in introducing testimony.

MR. SUDDATH: Thank you, your Honor.

DIRECT EXAMINATION

[5] BY MR. SUDDATH:

Q. Could you please give your full name? A. Carol
Hazelton.

MR. TURNER: Judge, for the record, my apology. I have
a slight hearing deficit and when I can’t see the speaker, it’s more
difficult for me to understand. I didn’t understand your last ruling,
for example.

THE COURT: He was in your way anyway, the way that
was positioned, so I think it’s appropriate to move it. Okay.

MR. TURNER: Thank you.
BY MR. SUDDATH:

Q. Ms. Hazelton, where are youemployed? A. Atthe U.S.
Postal Inspection Service in Philadelphia.

Q. And how long have you been so employed? A. A little
Over six years.

——— ee

2la
Appendix E

Q. Are you one of the case agents in the present
case? A. Yes, I am.

Q. And did you have occasion to serve a Grand Jury
subpoena upon an individual in this case? A. Yes, I served it
on Jeff Seligsohn of Binswanger and iat was on February 25th
of *91.

Q. Let me hand you what has been marked for identification
as Government Exhibit No. 2.

Can you identify that, please? [6] A. Yes, that is the
subpoena that I served on Jeff Seligsohn.

Q. Okay, and this was February 25th? A. That’s correct.

Q. And who is Jeff Seligsohn? A. He was a sales rep, I’m
not certain of his exact title, but he was the liaison between
Binswanger and the Lewis Tower Building.

Q. Okay? And _ during the course of your investigation,
did you have occasion to learn when Mr. Rashid had been evicted
from the 30th floor of the Lewis Tower Building? A. Yes, I
did, it was December 17th of ’90.

Q. And when did you first learn of the existence of the
documents which were located in the 30th floor of the Lewis Tower
Building? A. I heard first about it on January 25th of ’91, an
individual called and provided this information. I confirmed it

January 30th of ’91 when I spoke to Jeff Seligsohn of Binswanger.

Q. Okay. When did you first enter the premises of 30th floor
of the Lewis Tower Building? A. It was March 4th of ’91.

22a

Appendix E

Q. Prior to that time had you requested of Mr. Seligsohn
or of anybody to obtain copies of any of the documents
located? A. No, I did not.

[7] Q. Okay. Did you request to receive the documents
themselves as opposed to getting copies? A. Prior to March 4th?

Q. Prior to March 4th, that is correct? A. No, I did not.

Q. Did you ever see the documents prior to March 4th,
1991? A. No. I did not.

Q. And how was it that you entered the 30th floor of the
Lewis Tower Building on March 4th, 1991? A. When I served
the subpoena on Jeff Seligsohn, he gave me the phone number
to Chris D’Erasmo or Jackie. He told me that they were the
building management of Lewis Tower Building. He told me he
would advise them that I would be calling and to arrange an
appointment with him. I did so, it was set for March 4th. Chris
D’Erasmo let us up and — ‘‘us’’ is myself and Special Agent
Williams.

Q. And during the course of your investigation did you tell
anybody not to give these documents to Mr. Rashid? A. No,

I did not.

Q. Okay. Did you ever tell anybody not to tell Mr. Rashid
of the existence of the Grand Jury subpoena? A. No, I did not.

Q. Okay. Did you ever threaten anybody? A. No, I did
not.

Q. Did you ever attempt to coerce or intimidate any of the

———oE——————

23a

Appendix E

([8] individuals who were involved in obtaining the
documents? A. No, I did not.

MR. SUDDATH: Your Honor, that’s all the questions I have.
THE COURT: Cross-examine.

MR. TURNER: Thank you very much, your Honor. May
I do so from counsel table?

THE COURT: Yes, you may, as long as you speak into a
microphone.

MR. TURNER: I will do so and keep my voice up also, Judge.
CROSS-EXAMINATION
BY MR. TURNER:

Q. Good morning — or good afternoon, Inspector
Hazelton? A. Good afternoon, Mr. Turner.

Q. From whom did you hear that property remained on the
30th floor of the Lewis Tower Building on January 25,
1990? A. It was a person calling regarding a complaint against
Mr. Rashid.

Q. And what did they say, please? A. This person advised
me that they had tried to locate Mr. Rashid by going to the Lewis
Tower Building and had found that he was no longer there.
Apparently someone at the Lewis Tower Building had told this
person that he had been evicted because of nonpayment of rent
and provided a new address [9] which was 1424 Chestnut Street.

24a
Appendix E

Q. So that as of even January 25, 1991, a month before you
served the subpoena on Binswanger-Tranel in the person of Mr.
Seligsohn, you knew Mr. Rashid’s business address, is that
correct? A. Well, that is the first I heard of it, yes? And —

Q. And in fact you went to visit Mr. Rashid at his new
address during the month of February 1991, is that
correct? A. That is correct.

Q. And that was prior to either the issuance or the service
of the Grand Jury subpoena that was issued — I’m sorry —
Government Exhibit 2 before you today, his that

correct? A. That’s correct.

Q. May we understand that you did or you did not tell Mr.
Rashid that the Grand Jury was seeking his records? A. That’s
correct, I did not.

Q. Why not?

MR. SUDDATH: Objection.

THE COURT: What’s the basis of the question? I don’t know
that her motive matters, if she didn’t do it.

MR. TURNER: I’m sorry?

THE COURT: I don’t know that her motive matters. The
fact is she did not tell him. That’s the answer that is important.

MR. TURNER: No, your Honor.

{10} THE COURT: I’ll sustain the objection.

nN
Lr
pe)

Appendix E
BY MR. TURNER:

Q. Now, did the person with whom you spoke on January
25, 1991, describe for you the records, if any, which had been
left in the Lewis Tower Building? A. The person didn’t have
any information as to if anything was left.

Q. And then you first spoke with Mr. Seligsohn on January
30, is that correct? A. That’s correct.

Q. Well, did you ask Mr. Seligsohn what was
there? A. Yes, I did.

Q. And what did he tell you? A. He said he didn’t know,
but he knew that files were left of Amin Rashid and Associates.

Q. But he didn’t know what files? A. He didn’t — he
didn’t know any details about the contents.

Q. Did he know whether — withdraw that. Did he tell you
that only Amin Rashid and Associates’ files and records were
left on the 30th floor of the Lewis Tower Building or as he not
even able to tell you that, Inspector Hazelton?

MR. SUDDATH: Objection.
THE COURT: What’s the basis of your objection?
MR. SUDDATH: Hearsay, your Honor.

[11] THE COURT: Well, it’s all been hearsay, but I’ll overrule
the objection. Go ahead.

26a

Appendix E

THE WITNESS: He didn’t know what was left in the Lewis
Tower Building.

BY MR. TURNER:

Q. So that we might understand the chronology then, you
spoke with an unidentified person and then Mr. Seligsohn in late
January. You spoke — you learned of Mr. Rashid’s address and
personally visited Mr. Rashid during the middle of the month
of February, correct? A. That’s correct.

Q. And during that visit you didn’t tell Mr. Rashid that you
sought the records, correct? A. Correct.

Q. But then on February 28 you served a subpoena on Mr.
Seligsohn for all of the files and records, documents and computer
records of Amin Rashid and Associates, Correct? A. That’s
correct.

Q. Now, we understand that at no time, either before or
after service of the subpoena or before or after gaining the records,
you advised Mr. Rashid of your desire to obtain the records or
the fact that you had in fact obtained the records, is that
correct? A. That’s correct.

Q. So now you went in to the Lewis Tower Building on -
March [12] 4, 1991, to the 30th floor for the first time, is that
correct? A. That’s correct.

Q. Do you recall how it was you got to the 30th
floor? A. Chris D’Erasmo, the building manager, took us up
and — via elevator, that’s the only way to gain access to it.

27a

Appendix E

Q. And so that the Court may understand a physical
description of the premises, the 30th floor of the Lewis Tower
Building doesn’t really have a corridor with an entrance door to
the suite of offices, is that correct? A. That’s correct.

Q. In other words, once you get off the elevator you’re in
a reception area and then the private offices are around the
perimeter, is that correct. A. Correct.

Q. When you went up to the 30th floor of the Lewis Tower
Building on March 4, 1991, were the doors to the private offices
open or closed? A. I really don’t recall exactly.

Q. Did you go into the private offices on March 4,
1991? A. Yes. None of them were locked. The — I just recall
getting access to them without a problem.

Q. Could you tell by observation or otherwise whether at
some point in time the private offices or at least certain of them
had locks on the doors which had been forced? [13] A. I don’t
recall seeing any locks that were forced. That’s the best of my
recollection.

Q. Would it be the case that while you were in the Rashid
premises on March 4th that you observed a variety of file
cabinets? A. That’s correct.

Q. And were some of them locked? A. Some of them were
locked.

Q. Did you actually look at any pieces of paper on March
4th? A. Just flipping through it to see the quantity. We were
trying to gauge what it would take as far as number of boxes.

28a

Appendix E

We tried to plan the logistics so that we would pack it up the
next day and move it out, so we were just trying to guess volume.
So that was the purpose of, that was a look, kind of look-see
type of deal; we spent about an hour there. Did you see any records
which you felt might not have een Amin A. Rashid and Associates
records?

MR. SUDDATH: Objection.

THE COURT: Basis of your objection?

~

MR. SUDDATH: We’re going beyond the scope of the direct
examination.

THE COURT: We — yes, we’re getting way beyond the scope
of the direct examination, but she could be called, I assume, as
his witness, so I’ll permit this questioning. Go [14] ahead.

MR. TURNER: Thank you very much, your Honor.
THE WITNESS: I’m sorry, could you repeat that?
BY MR. TURNER:

Q. While you were reviewing the records on March 4, 1991,
on the 30th floor did you observe any records which appeared
to be records not of Amin A. Rashid and Associates — A. No —

Q. — but of Mr. Rashid personally or any other person or
entity? A. On March 4th I didn’t review more than just looking
for quantity, I don’t recall that, and on March Sth is the time
we went through it much more carefully as we were logging it
into, you know, putting into boxes and noting on the exterior

29a

Appendix E

of the box what was being taken. And I don’t recall anything
that did not belong to Mr. Rashid.

Q. I’m sorry, to Mr. Rashid or Amin A. Rashid and
associates? A. Amin A. Rashid and Associates.

Q. On March 4 you don’t recall anything along those
lines? A. No. March 4th, I — what I was trying to explain is
we didn’t review any of the files, other than taking a quick look-
see to see just number of file cabinets, how full the drawers were
and that type of thing, just trying to quesstimate how much —
how many boxes we would need the next [15] day.

Q. Could you open all of the file cabinet drawers? A. Well,
we did. Three of the file cabinet drawers were locked and since
Jeff Seligsohn had advised us that beforehand, we had brought
along two techs from my office and they brought drills. And what
we did was ask Chris D’Erasmo initially if we could remove the
file cabinets with the files in them. He said that some of the
furniture belonged to Binswanger as well as some of the file
cabinets. He requested that we not do that and he gave us
permission to drill the three file cabinets that were locked.

Q. Well, did he tell you that the three file cabinets that were
locked were each owned by Binswanger or — A. Well —

Q. — Trane! or the Lewis Tower Building?

THE COURT: Excuse me. Mr. Turner, where are you going
on this examination? I mean, I understand your petition here,
but I think you’re rambling all over the place on this.

MR. TURNER: Oh, I’m sorry, I certainly don’t mean to
do that, Judge.

30a

Appendix E

THE COURT: Well, | know you don’t, but I’m wondering
what you’re doing here other than just conducting an examination
for I don’t know what reason. I mean, I understand the content
of your petition here and I’m [16] following it to see whether
Or not you’re proving things that are in there which I think you
already have proven that they went in there, the papers and so
forth. I don’t understand what the purpose is of your continuing
questioning of this witness.

MR. TURNER: It is our position as a factual matter, Judge,
that certain of the file cabinets which were drilled were in fact
not owned by Binswanger indeed but owned by Mr. Rashid.

THE COURT: Well, of course, your client can testify to that
as well as —

MR. TURNER: He can.
THE COURT: Huh?

MR. TURNER: He can, but I suppose part of it then may
turn depending upon how the Court cares to — chooses to view
this subpoena/4th Amendment issue as turning on the intent of
the Government. If the Court is of a mind that intent is not
pertinent, then my inquiry may be somewhat more focused.

THE COURT: I think you ought to get more in focus. I
don’t think the intent is really important in the determination

here of this issue.

MR. TURNER: Very well, your Honor.

a

3la

Appendix E
BY MR. TURNER:

Q. Would it be accurate to say that until you opened the
[17] file cabinets, either on March 4 or some other day, that you
did not know the contents thereof? A. That’s true.

Q. Did anybody from Binswanger ever advise the United
States or you, so far as you are aware, that either Binswanger
or Tranel was the owner of the personal property left inside the
Rashid premises on the 30th floor? A. The only person I spoke
with at Binswanger-Tranel regarding that was Chris D’Erasmo
and he advised me that Binswanger owned the furniture and some
of the file cabinets and he wasn’t certain of the — which exact
pieces of furniture. He didn’t have an inventory list with him
at the time, but I think what he — I mean, he advised us, he
gave us permission to drill the file cabinets and requested that
we not remove any of the file cabinets. At that point in time he
had possession of everything in the suites and I believe that that
was the basis for his providing — giving us permission to drill
the cabinets.

Q. I’m sorry, I perhaps didn’t put the question well. Did
Mr. D’Erasmo or Mr. Seligsohn or any other representative of
Binswanger or Tranel ever tell you — A. Mm-hmm.

Q. — that Binswanger or Tranel owned the personal property
such as the files, records and computers and computer records

— [18] A. Oh, I’m — now I understand you. No, sir.

Q. — which were inside the 30th floor? A. No, sir, I was
just focusing on the furniture.

Q. Were any of the file cabinets which were not locked —

32a

Appendix E

I’m sorry, withdraw that. Were any of the file cabinets locked
but opened by means other than by drilling, that is by simply
giving a yank — A. Mm-hmun.

Q. — and forcing them open? A. I’m sorry, sir, I didn’t
understand the question.

Q. You’ve told us that three file cabinets were locked and
drilled. What I’m asking you is were there any other file cabinets
which were locked but which were opened by the Government
by some means other than the use of a drill? A. Oh, no, sir,
the other ones were open. |

Q. As between you and Mr. Seligsohn — A. Mm-hmm.

Q. — when you first spoke with him-on January 30, whose
idea was it for the Government to get the records via a subpoena?

MR. SUDDATH: Objection.

THE COURT: Basis for your objection?

MR. SUDDATH: Relevancy, your Honor.

THE COURT: What’s the relevancy of this, Mr. Turner?

[19] MR. TURNER: Well, the Barr case, your Honor, says
that the totality of the circumstances must be considered, so I’m
simply trying to develop a full record as to whether the subpoena
was the proper procedure under these circumstances to be used,

so I’m trying to put the circumstances before the Court.

THE COURT: All right, you may answer the question.

Hani i id kia a

33a

Appendix E
MR. TURNER: Thank you, your Honor.

THE WITNESS: Okay. If I understand the question correctly,
it was did Jeff Seligsohn or myself bring up — I’m sorry, rephrase
the question?

BY MR. TURNER:

Q. Let me re-put the question to you, Inspector. A. Yeah,
thank you.

Q. As between you and Mr. Seligsohn — A. Mm-hmm.

Q. — who first mentioned the use of a subpoena? A. On
January 30th I don’t believe it came up at all. I told him — well,
my question to him at that time was what do you intend to do
with the records. And he didn’t seem to have an exact answer,
but he said at some point in time they would dispose of them.
My request to him was ‘“‘I will be getting back to you. Please
advise me if you are going to dispose of them, and I left it at
that. It wasn’t until a later conversation that I advised him that
— it was my initiative, [20] I said I would obtain a subpoena,
but I first needed to speak to the landlord — the lawyer, I’m
sorry, that handled the landlord-tenant complaint. But Jeff
Seligsohn never brought up subpoena in any of my conversations
with him, it was my — it was my telling him that the Government
intended to subpoena the documents.

MR. TURNER: I have no further questions of you this
afternoon, Inspector Hazelton, thank you.

THE COURT: All right. Anything else?

34a

Appendix E
MR. SUDDATH: No questions, your Honor.
THE COURT: You may step down, Agent.
(Witness excused.)
THE COURT: You may call your next witness.

MR. SUDDATH: Your Honor, that’s the totality of the
Goverment’s case.

THE COURT: All right.
MR. SUDDATH: At this point.

THE COURT: All right, now, Mr. Turner, you may proceed
by calling your witnesses.

MR. TURNER: Thank you very much, your Honor.

For the record, your Honor, the first witness will be Daniel
Bernstein, Esquire, a member of the Philadelphia Bar.

THE COURT: All right.

MR. TURNER: Mr. Bernstein, will you please have a [21]
seat on the witness chair?

MR. SUDDATH: Your Honor, may I ask for an offer of
proof?

MR. TURNER: Your Honor, through Mr. Bernstein, if you
would care to hear an offer of proof, I intend to establish facts

ee

35a

Appendix E

pertinent to the Government’s claim in its moving papers that
Mr. Rashid abandoned these goods which were later either
subpoenaed or seized by the United States, so I intend to overcome
the allegation of abandonment.

THE COURT: Fine.

MR. TURNER: I will tell you, however, your Honor, that
in my view, in my legal view the issue of abandonment is one
which the Government must first establish and must carry the
burden on at all times. But I want the record to be complete
because I’m not — it’s a little hard to tell in the context of this
hearing who is going first.

THE COURT: Well, I'll permit you — I’ll permit this witness
to testify on that basis.

MR. TURNER: Very well.
DANIEL BERNSTEIN, Plaintiff’s Witness, Sworn.

THE AUDIO OPERATOR: Please state your name for the
record and spell your last name?

THE WITNESS: Daniel P. Bernstein, B-e-r-n-s-t-e-i-n.
DIRECT EXAMINATION
[22] BY MR. TURNER:

Q. Mr. Bernstein, you’re a lawyer in Philadelphia, I take
it? A. That’s correct.

36a

Appendix E

Q. And where do you make your offices, sir? A. 1429
Walnut Street, Suite 1400.

Q. Were you retained by Mr. Rashid in or about the summer
of 1990? A. Yes, I was.

Q. And for what purpose were you retained, please? A. To
work out an agreement concerning Mr. Rashid’s lease of the 30th
floor of the Lewis Tower Building in Philadelphia.

Q. Sir, directing your attention to September of 1990, was
an agreement reached between Mr. Rashid and the Lewis Tower
Building? A. Yes, there was.

Q. And could you just ever so briefly, please, describe,for
the Court the nature of this agreement? A. Basicaily a schedule
of repayment was worked out with the Lewis Tower Building to
make up the past due rents and to carry on current rents, rental
payments. As part of the agreement, a judgment by agreement
for possession of the property Was entered into. Also, as long
as payments were kept current, there was a written agreement
to the effect that the writ of possession would not be acted on,
an alias [23] writ would not be issued and there would be no actual
attempt by Lewis Tower Building to take possession of the 30th
floor.

Q. Now, as of November 1990, Mr. Bernstein, did it come
to your attention as to whether or not Mr. Rashid was current
Or not current in connection with his payments on this workout
agreement of September? A. Yes.

Q. And what was the situation there, just very briefly,
please? A. At the end of October Mr. Rashid was not up to

37a

Appendix E
his payments pursuant to the agreement.

MR. SUDDATH: Your Honor, just so the record — excuse
me, Mr. Turner — just so the record is clear, | don’t mean to
beat a dead horse, but the Government’s position for the record
is this entire line of questioning is not relevant to the issue before
the Court.

THE COURT: I understand. Your objection is noted.

MR. TURNER: May I have one moment with opposing
counsel?

(Discussion off the record.)
BY MR. TURNER:

Q. Mr. Bernstein, I place before you an exhibit which I have
marked as Exhibit D-1. Can you describe that document for the
Court, please? A. Yes, this document purports to be a
memorandum from the [24] Lewis Tower Building to all building
security to the effect that absolutely nothing is allowed to be
removed from the above-mentioned suite, referring to Suite 3000,
Amin Rashid.

Q. And that is as of November 14, 1990? A. That is the
date on the memorandum, yes.

Q. I’m sorry? A. That is the date, yes.

Q. And you got this from — excuse me. Have you ever seen
it before today, this memorandum? A. Yes, I have.

38a

Appendix E

Q. And when did you first see it, please? A. I was first
made aware of it in November of 1990.

Q. And it was brought to your attention by whom,
please? A. By Mr. Rashid.

Q. Now, I’m going to direct your attention to a month later,
that being December 14, 1990, what if anything occurred on that
day in connection with the Rashid Lewis Tower Building
situation? A. That would be on Friday. That afternoon |
received a call from Shelley Lange, a paralegal at the Law Offices
of Robert Guzzardi which at that time was representing the Lewis
Tower Building to the effect that the last check submitted by Mr.
Rashid pursuant to the agreement had been dishonored and that
a lockout would be scheduled for approximately noon on the
following Monday, December 17th.

[25] Q. Did you try to reach Mr. Rashid with this
information? A. I did several times that afternoon.

Q. And on the weekend also? A. Yes, at home over the
weekend.

Q. And may we understand that those attempts, at least
through Sunday, were unsuccessful? A. That’s correct.

Q. Did you reach Mr. Rashid on Monday with this
news? A. We spoke approximately 9:30 Monday morning.

Q. And that would be December 17th? A. December 17th,
yes.

Q. And in fact was the lockout accomplished on that
date? A. Yes.

39a

Appendix E

Q. Now, I’m going to direct your attention, if I could, please,
to late December of 1990. Were you still representing Mr. Rashid
in connection with his relationship with the Lewis Tower
Building? A. Yes, I was.

Q. And did you and Mr. Rashid have a meeting as a result
of which you had a telephone conversation with Mr.
Guzzardi? A. That is correct.

Q. Could you please describe for the Court your late
December 1990 telephone conversation with Mr. Guzzardi,
please? A. Yes. I was instructed to contact Mr. Guzzardi and
make [26] an offer of $10,000 towards the amount due Lewis
Tower Building in exchange for allowing Mr. Rashid to enter the
30th floor of the Lewis Tower Building to remove several files.

Q. And did Mr. Guzzardi make aresponseto you? A. Mr.
Guzzardi categorically rejected the suggestion.

Q. And what did Mr. Guzzardi say in rejecting this in terms
of what would or would not be acceptable to the Lewis Tower
Building?

MR. SUDDATH: Objection; hearsay.

THE COURT: Overruled.

THE WITNESS: Mr. Guzzardi indicated that the full amount
due pursuant to the agreement would have to be paid before Mr.

Rashid would be allowed on the premises.

BY MR. TURNER:

40a

Appendix E

Q. Now, on that same day — well, was Mr. Rashid with
you when you had this telephone discussion with Mr.
Guzzardi? A. Yes, he was.

Q. And immediately after that what did Mr. Rashid do,
please? A. Mr. Rashid, using my telephone, attempted to reach
Mr. Jeff Seligsohn of Binswanger Management Company.

Q. And you heard this? A. Yes, I did.

Q. Okay. And was he successful — well, tell the Court what
[27] you were told about that attempt, please? A. Mr. Rashid
picked up the telephone and dialed Binswangei, asked for Mr.
Seligsohn and apparently was told that he was unavailable.

Q. And did he — A. And Mr. Rashid left his telephone
number with a request for Mr. Seligsohn to call him back and
that was the end of it.

Q. Directing your attention to the period January and
February 1991, what action if any did you take in connection
with Mr. Rashid’s attempts to regain his property at the Lewis
Tower Building? A. I definitely recall at least one and I believe
there were two brief telephone conversations again with Shelley
Lange of Mr. Guzzardi’s office basically to the effect as to what
the status was vis-a-vis the 30th floor, whether it had been relet,
whether any material had been removed. I was told by Ms. Lange
that — that the status quo remained the same; it was a very brief
telephone call.

Q. And directing your attention now if I might, please, to

March of 1991, what if anything occurred in connection with your
continued representation of Mr. Rashid? A. Commencing in

4la

Appendix E

early March I was instructed to commence settlement negotiations
with Lewis Tower Building through Mr. Guzzardi’s office to the
effect of gaining both entrance to [28] the 30th floor and to renew
the lease, so to speak, of the 30th floor so it would be used for
Mr. Rashid’s business purposes.

Q. And did you have back and forth discussions with Mr.
Guzzardi on the point? A. Yes, with both Mr. Guzzardi and
Ms. Lange.

Q. And at some point in time in March or early April were
business terms agreed on in principle? A. Yes. In early April
there was an agreement reached both as to the amount which
would be paid in full satisfaction of the judgments that had been
incurred on behalf of Lewis Tower, as to a half payment of rent
for storage charges during the period during which Mr. Rashid
was not allowed on site and also renegotiating into a new lease,
the terms of that new lease. An agree —

Q. Didthe —I’msorry. A. I was going to say agreement
in principle was reached on all those issues by early April.

Q. As of that time did you have knowledge, either personally
or by something somebody may have said to you that there was
any problem with the Rashid property having been taken from
the 30th floor? A. I had no information concerning that.

Q. I direct your attention then to April 29, 1991. Could you
tell the Court what happened on that day? [29] A. Yes, I was
out of the country on vacation. The second half of April before
I went on vacation we had set a meeting for the afternoon of
Apnil 29th with myself, Mr. Rashid, Mr. Guzzardi and Ms. Lange,
at which time the agreement in principle would be finalized among

42a

Appendix E

the parties. Such a meeting was held at approximately 3:30 on
the afternoon of April 29th, attended by myself, Mr. Rashid,
Ms. Lange, Mr. Guzzardi; it was held in Mr. Guzzardi’s law offices
on Walnut Street.

Q. And what if anything happened at the end of that
meeting? A. An agreement in principle was reached to both
satisfy the prior debt to Lewis Tower Building as well as resetting
the terms of the new lease going forward.

Q. And that was the same agreement that had been reached
before you went — before you were traveling, is that
correct? A. That’s correct, this was just to finalize the
agreement.

Q. Mr. Bernstein, I place before you that which I have
marked as D-2. A. Yes.

Q. Can you describe those documents for the
Court? A. This is a document appears to be a photocopy of
two cashier’s checks drawn on Mellon Bank, both issued to Robert
R. Guzzardi P.C. The first check in the amount of $25,517
represents both satisfaction of the outstanding judgments as [30]
well as the agreed upon, quote, ‘‘storage rent,’’ unquote, running
up to the end of April. The second check on the page in the amount
of $9300 represented a new security deposit of three months rent
to be applied vis-a-vis the new lease which was to be entered into.

Q. Now, were these checks in fact given to Mr. Guzzardi
that day? A. They were not.

Q. And what happened at the conclusion of that meeting,
if you would, please? A. At the conclusion of the meeting an

43a

Appendix E

agreement was reached that Mr. Guzzardi’s office would prepare
a formal settlement agreement which would be presented to myself
and Mr. Rashid the following morning. At that time the execution
of the settlement agreement the checks would be turned over to
Mr. Guzzardi.

Q. And did Mr. Guzzardi on behalf of Binswanger or Trane!
Corporation permit Mr. Rashid then the privilege of inspecting
the premises? A. Yes. Before execution of the agreement Mr.
Rashid wished to inspect the premises. Mr. Guzzardi thereupon
contacted either Lewis Tower Building or Binswanger Management
and informed us that he had made arrangements for both Mr.
Rashid and myself to walk around the corner and allow us access
to the 30th floor of the Lewis Tower Building.

[31] Q. And you gained such access, | take it? A. We
did, yes, that afternoon.

Q. And did you find the files and records missing? A. Yes,
I did.

Q. Did you have any further discussion thereafter with Mr.
Guzzardi concerning a settlement of the dispute between Mr.
Rashid and the Lewis Tower Building? A. Yes, actually from
the 30th floor of the Lewis Tower Building, the phones were still
operational, Mr. Rashid and I placed an inumediate call to Mr.
Guzzardi informing him we had found various filing cabinets that
were left open that had been drilled, there were certain computer
terminals which were no longer there. We informed Mr. Guzzardi
that we were prepared to go ahead and sign the settlement
agreement provided that there was an exception to the release,
mutual release which was to be part of the agreement, allowing
Mr. Rashid to assert any claims arising out of the disappearance

44a

Appendix E
of the material from the 30th floor.

Q. Did Mr. Guzzardi indicate to you whether or not he knew
the items you were complaining of were in fact missing as of when
he was sitting with you on the 29th? A. Mr. Guzzardi said he
had no idea what happened.

Q. And was that agreement then ultimately entered
into? A. No, I spoke with Mr. Guzzardi the following morning,
who informed me that his client would not agree to such a carve-
[32] out from the release and as a result there was no point in
going further.

Q. Now, have you had occasion in connection with your work
as a lawyer to kmow Mr. Guzzardi in the context of other cases
as well as this case? A. Yes, I have.

MR. SUDDATH: Objection.

THE COURT: What does this have to do with anything?
You are way past the time when the files were seized and I don’t
see that it has any point, so I’ll sustain the objection.

BY MR. TURNER:

Q. Do you know whether or not Mr. Guzzardi knew — let
me withdraw that, your Honor.

To your knowledge was any writ of execution, any levy or
any attachment issued by the Court of Common Pleas of
Philadelphia County — A. Not to my —

Q. — in connection with the Rashid personal property located

4Sa

Appendix E

on the 30th floor of the Lewis Tower Building? A. Not to my
knowledge.

Q. To your knowledge was any distraint or notice of distraint
following the statute issued or effected in this case, Mr. Bernstein?

MR. SUDDATH: Objection.

[33] THE COURT: Overruled.

THE WITNESS: Not to my knowledge at that time.
Subsequently I was informed that there was a notice placed on
the property.

BY MR. TURNER:

Q. And may we understand it was placed on the property
in a place which was not —

MR. SUDDATH: Objection.

MR. TURNER: Withdrawn. I’ll get that through another
witness, your Honor. I have no further questions for Mr.
Bernstein.

CROSS-EXAMINATION

BY MR. SUDDATH:

Q. Mr. Bernstein, when Mr. Rashid was evicted on December
I7th, 1990, he owed approximately $20,000, did he not? A. I

46a

Appendix E

believe the judgment was for 15,000 plus.

Q. The judgment you’re referring to, what judgment is
that? A. The judgment by agreement that had been entered into
in, I believe, late August of 1990.

Q. Let me hand you what’s been marked for identification
Government Exhibit G-4. That is in fact a alias writ of possession,
correct? A. That’s correct.

Q. Okay. And with that alias writ of possession am I correct
that the landlord was empowered to direct the [34] Philadelphia
Sheriff to lock Mr. Rashid out of the premises? A. That’s
correct.

Q. And I believe you said you met with Mr. Rashid at 9:30
on December 17th? A. No, I did not, I said 1 — -

Q. Or you spoke with him, is that correct? A. — spoke
with him, yes.

Q. And this lockout occurred approximately 4:00 o’clock
on December 17th, is that correct? A. I am not sure of the date;
I was not present at the time.

Q. There is marked on the back of Government Exhibit G-4
the date 12/17 at 4:00 o’clock, correct? A. It does say 4:00.

It doesn’t say a.m., p.m.; I can’t testify as to what that — those
numerals mean.

MR. TURNER: We’ll stipulate it was approximately 4:00

47a

Appendix E F

o’clock, your Honor.

BY MR. SUDDATH:

Q. Since the — since Mr. Rashid was locked out of the
premises did you, on his behalf, ever file an injunction to block
the lockout? A. No, we did not.

Q. Okay. Did you ever pursue any legal course of action
on his behalf to interfere or for him to gain access back? A. No,
a determination was made not to proceed by that route.

[35] Q: And during the course of your discussions with Mr.
Rashid you testified that there were negotiations for him to re-let
the premises, correct? A. -That’s correct.

Q. Okay. During this time do you recall making a request
on his behalf for the property that was in the 30th floor to be
returned to Mr. Rashid? A. Could you — I don’t understand
the context of the question.

Q. Did you ever ask for the property that was located in
the 30th floor of the Lewis Tower Building to be returned to Mr.
Rashid after he was evicted and locked out on December
17th? A. One of the purposes of the negotiations was to allow
him access to his property located on the 30th floor there.

Q. So am I correct that you never requested for the property
to be returned to Mr. Rashid? A. Well —

MR. TURNER: Objection to the extent that that purports

48a

Appendix E
to restate Mr. Bernstein’s testimony, it’s inaccurate.

THE COURT: The objection is overruled; he hasn’t answered
the question.

THE WITNESS: Other than what I outlined previously in
my testimony there was no additional request, that’s correct.

[36] BY MR. SUDDATH:

Q. Okay, so you will agree with me that you never asked
on Mr. Rashid’s behalf for the property to be returned to Mr.
Rashid, yes or no?

MR. TURNER: Objection. That’s inconsistent with Mr.
Bernstein’s direct testimony.

THE COURT: The objection is sustained, but not for the
reason you’re suggesting. It’s been asked and answered, as far
as I’m concerned.

BY MR. SUDDATH:
Q. Did you ever hear Mr. Rashid make a request to any

Binswanger or Tranel representative for his property to be returned
to him? A. No, I don’t recall ever hearing any specific

conversation on any matter between Mr. Rashid and
representatives of Binswanger.

MR. SUDDATH: Your Honor, I have no further questions.

—————

49a

Appendix E

THE COURT: All right.

MR. TURNER: I have no redirect examination, your Honor.

THE COURT: All right, you may step down.

THE WITNESS: Thank you, your Honor.

(Witness excused.)

MR. TURNER: I don’t plan to call Mr. Bernstein [37] again.
I know he’s indicated an interest in remaining in the courtroom
with the Court’s permission.

THE COURT: What?

MR. TURNER: Mr. Bernstein — oh, never mind. I had
forgotten this was a sealed proceeding, your Honor. My apologies.
I was dealing only with the sequestration issue.

THE COURT: Okay, you may call your next witness.

CHRISTOPHER D’ERASMO, Plaintiff’s Witness, Sworn.

THE AUDIO OPERATOR: State your name and spell your
last name, please?

THE WITNESS: Okay, my name is Christopher D’Erasmo,
D’-E-r-a-s-m-o.

50a

Appendix E

DIRECT EXAMINATION
BY MR. TURNER:

Q. Good afternoon, Mr. D’Erasmo. You appear here
pursuant to subpoena, is that correct. A. Sir?

Q. You appear here pursuant to a subpoena which was served
on you, is that correct? A. Yes, sir.

Q. Mr. D’Erasmo, as of the period which would include
December 1990 into March 1991, were you in charge of the
building operations of the Lewis Tower Building on behalf of
Binswanger? A. Yes, sir, I was.

[38] Q. Let me place before you that which has previously

been marked as Exhibit D-1. Would you take just a moment and
look at it, please?

(Pause.)
A. Yes, sir.
Q. Mr. D’Erasmo, first, is that your signature which appears

next to the typing of your name on the second line of this
memorandum? A. Yes, sir.

Q. Did you issue this memorandum at the instruction of
Binswanger, is that correct? A. Yes, sir.

Sla

Appendix E

Q. And is it, so far as you’re aware, the usual practice of
Binswanger that when a tenant gets behind on rent, they want
to make sure that none of the personal property is taken out of
the building by the tenant under that circumstance where there
is a lateness or a delinquency in the rent? A. Not unless they
go through the building manager.

Q. And so far as you are — so far as you are aware, Mr.
D’Erasmo, was the policy with respect to Amin Rashid, Suite
3000, enforced as that policy is expressed in Exhibit D-1? A. Yes,
sir.

Q. Mr. D’Erasmo, were you present in December of — on
December 17, 1990, when the sheriff came to lock out Mr. Rashid
from the premises? [39] A. Yes, sir.

Q. And tell me, please, how long did the sheriff or the
sheriff's representative give Mr. Rashid to clear out of the premises
once the sheriff or his representative arrived? A. It was — I
have to think, there was twice when the sheriff came.

Q. I’m speaking of ihe second time, Mr.
D’Erasmo. A. The second time? Yes, sir, he had walked in and
told Mr. Rashid that he would have to vacate the premises and
Mr. Rashid said he knew about it, he was waiting for him to
come and he asked for a few minutes so that he could alert his
staff that they had to leave the premises, which Mr. Rashid did,
and then the sheriff said go take five or ten minutes and we’ll
wait here for you or take five minutes and we’ll wait for you.

Q. And in fact is that about how long Mr. Rashid was given
to clear out of the premises, about five minutes? A. Five or
ten minutes, yes, sir.

52a

Appendix E

Q. All right. I’m going to shift your attention now, if I could,
please, to a later point in time. Mr. D’Erasmo, I place before
you that which I have caused to be marked as Exhibit D-3. Have
you seen this before? A. Yes, I believe this is the thing, the paper
that I posted on the lobby of Mr. Rashid’s suite by the elevator.

Q. Now, when Mr. Rashid was locked out of the 30th floor
of [40] the Lewis Tower Building, first, so that we may understand
it, he had the entire 30th floor, is that correct? A. That’s correct.

Q. And there was no separate entry door to the Suite 3000
aside from the elevator doors, is that correct? A. That’s right.

Q. After Mr. Rashid was locked out did Binswanger turn
off on an electric or electronic basis the elevators to the 30th floor
except and unless somebody used a special key to gain access to
the 30th floor, is that correct? A. That’s correct.

Q. So if somebody just sort of walked into the building,
walked onto the elevators and tried to push the button which said
30 and go to the 30th floor, they couldn’t do that, could
they? A. No, sir.

Q. Now, did you post this notice, this notice of distraint,
where without that special key access to the 30th floor no one
could see it?

MR. SUDDATH: Objection.
THE COURT: Well, what does this have to do with anything?

MR. TURNER: This purports to be a notice of distraint,
your Honor. Notice has to be given in a particular way under

53a

bn, Appendix E

the statute. It was given in a way [41] where Mr. Rashid could
not have seen it as a matter of physical impossibility because of
the configuration of the building.

THE COURT: All right, the objection is sustained. I don’t
think this is relevant to the inquiry, objection sustained.

MR. TURNER: Very well. If the Court will bear with me
just one moment.

(Pause.)
BY MR. TURNER:

Q. I direct your attention, Mr. D’Erasmo, to March of 1991.
Were you present in the Rashid suite in the Lewis Tower Building
when the Postal Inspector Hazelton and an FBI Agent Williams
were up there and caused the locks on the file cabinets to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1162%3A1. Public record. Not legal advice.