decided: June 29, 1979; As Amended July 2, 1979.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 M 310 -- George N. Leighton, Judge.
Before Swygert, Bauer and Wood, Circuit Judges.
The issue herein presented is the appealability by movant-appellant of an order denying his "pre-indictment" motion for return of property pursuant to Rule 41(e), Fed.R.Crim.P.*fn1 Appellant claims the adverse order is final and appealable pursuant to 28 U.S.C. § 1291, whereas the government argues the order is interlocutory and not appealable.
The facts of this case, insofar as they are defined for purposes of this appeal, are strange but straightforward up to a point. Certain of the facts are apparently uncontested.
Anthony J. Accardo and his wife own, in joint tenancy, a residence in River Forest, Illinois. In January of 1978, Mr. and Mrs. Accardo were vacationing in California. Several people mostly relatives had access to the premises for various purposes. A nonrelative, one Michael Volpe, also had access to the premises; he apparently was employed by Accardo as a handyman. Volpe discovered a forced entry of the Accardo residence in January, 1978, and notified Accardo of that fact. Mr. Accardo immediately returned to River Forest.
It is interesting to note that neither Volpe nor Accardo notified any law enforcement agency, state or federal, about the break-in. As a matter of fact, the record before us is silent as to how the police eventually discovered that a burglary had occurred. The record is also silent as to whether the failure to report the fact to the police was based on a lack of faith in the powers of the police to solve the crime or a basic mistrust of dealing with law enforcement agencies that has roots in some earlier, and also unexplained, experience of Accardo.
At any rate, some time after the burglary shortly thereafter, as a matter of fact various people described by the government as "known burglars" began showing up dead, none from natural causes, in the Chicago Metropolitan area.*fn2
The sudden increase of homicides within a particular, and one might hope, limited professional group, apparently fanned the normally suspicious attitudes of the various law enforcement agencies to a fevered pitch. Eventually, the Federal Bureau of Investigation began to look into the facts and circumstances herein described.
At some point during the federal investigation certain people were brought before a grand jury to shed some light on the events; these included members of the Accardo family and also Mr. Michael Volpe, the handyman.*fn3 Sometime after Mr. Volpe's appearance before the grand jury and while he was still subject to recall before that body, he left his home for his usual place of employment the Accardo residence and seemingly disappeared from human knowledge.
This final mysterious touch to the affair led the Department of Justice, acting through a Special Attorney and the Federal Bureau of Investigation, to seek and secure a search warrant for the premises of the Accardos for the purpose of locating
"personal effects including keys, wallet, credit cards, jewelry, clothing and automobile of Michael Joseph Volpe and evidence of destruction by incineration and secreting of the above items which are evidence of the obstruction of justice by person or persons unknown by endeavoring to secrete, make unavailable, and/or abduct Michael Joseph Volpe, a witness before the Special September 1978 Grand Jury."
The warrant issued and the agents went to the Accardo home. They were admitted by one of the Accardo daughters. After photographing the interior, the agents seized the following items:
1. a Regency police scanner;
3. a pair of cuff links (taken from a dresser drawer);
4. some debris burnt ashes and "residue" from the incinerator;
5. two Smith and Wesson revolvers (taken from a safe in ...