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United States Postal Service v. C.E.C. Services

decided: March 6, 1989.

UNITED STATES POSTAL SERVICE, PLAINTIFF-APPELLEE,
v.
C.E.C. SERVICES, DEFENDANT-APPELLANT



Appeal from an order in the United States District Court for the Western District of New York (John T. Elfvin, Judge) denying a request for a return of property pursuant to Fed. R. Crim. P.41(e). Since there is no longer a grand jury sitting in this case, appellate jurisdiction exits. We affirm.

Kaufman, Winter and Miner, Circuit Judges.

Author: Winter

WINTER, Circuit Judge.

This appeal presents the question of whether the denial of a Fed. R. Crim. P. 41(e) motion for return of property seized pursuant to two search warrants is appealable by a party which was, but is no longer, the subject of a grand jury investigation. We hold that it is. In addition, we affirm the district court's upholding of the search warrants.

BACKGROUND

In July 1987, United States postal inspectors applied for a search warrant for the premises of C.E.C. Services ("CEC") at "1030 Rand Building" on the basis of an affidavit of a postal inspector. The affidavit stated that the Postal Service and U.S. Customs had intercepted over 13,000 pieces of mail, originating from CEC, that contained lottery material indicating a possible violation of 18 U.S.C. ยง 1302 (1982). That provision prohibits generally the sending of mail concerning lotteries or similar schemes offering prizes dependent in whole or in part upon lot or chance. The affidavit related information obtained from an employee of CEC and described CEC's telemarketing operations. These consisted mainly of telephone solicitation efforts aimed at selling shares in groups entering various lotteries in Canada. Mailings were often made to prospective players on referrals from telemarketers. CEC received entries and proceeds through a post office box in Niagara Falls, New York. In addition, United States Customs officials had seized a package containing lottery advertisements or brochures, including a return envelope addressed to CEC in Niagara Falls that had been mailed from Canada to an addressee in the United States. The government attached the package as an exhibit to the warrant application.

A search warrant was issued for the following property:

Business, personnel and financial records of the entities named herein;

Any records relating to the employment of solicitors, telephone personnel, and office personnel;

Lists of customers' names and addresses and amounts of contributions and related records including payments and payment receipts, memorandum and notes;

U.S. Mail and stamps and envelopes and correspondence;

Any banking records of the entities named herein including, but not limited to, statements, checks and checking books, and deposit slips;

Any records of disbursements of funds, including, but not limited to, payroll, utilities, rent, telephone bills, daily sales figures;

Any records of mailing and telephone calls including, but not limited to, memorandums, messages, telephone directories, tally ...


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