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BOP Guards Smuggle Sperm for Mobsters

BOP Guards Smuggle Sperm For Mobsters

by Gary Hunter


On March 1, 2002, the U.S. District court for the Middle District of Pennsylvania denied the motion of a mobster's wife requesting the return of her incarcerated husband's sperm. Circumstances leading to this unusual request began in 1992 when Antonio Parlavecchio, a known Mafia member, was sentenced to 14 years in prison at the federal prison complex in Allenwood, Pennsylvania, for racketeering. His wife, Maria Parlavecchio, who is 38 and childless, bribed prison guard Troy Kemmerer to smuggle a cryogenic sperm kit into and out of the federal prison.


The sperm smuggling scam had become popular among mobsters doing time in Allenwood. Prison officials became suspicious when imprisoned wiseguy Kevin Granato, who had been locked up for 10 years, began bragging about his two year old son at a visit.


A federal agent posing as a mobster's girlfriend convinced Kemmerer to smuggle a sperm kit into the prison which led to his arrest on bribery charges. [PLN, Sept. 2001] At least two other guards were involved in the illegal smuggling activities. Todd Swineford and Mark James were pressured by the Bureau of Prisons (BOP) into quitting their jobs as guards for smuggling such creature comforts as Genoa salami and Romano cheese as well as sperm kits into the prison. James is also accused of selling information about other prisoners to incarcerated Mafia enforcer Frank Pontillo of the Colombo family.


Guards received $200-$300 per trip to smuggle the semen out of the prison. Parlavecchio's sperm was confiscated from a New York fertility clinic on Park Avenue shortly after Kemmerer's arrest.


On December 13, 2000, a federal grand jury indicted Mr. And Mrs. Parlavecchio on ten counts of conspiracy in violation of 18 U.S.C. § 371. On August 29, 2001, Mrs. Parlavecchio pled guilty to providing a prohibited object to a prisoner and was sentenced to one year of probation.


On February 1, 2002, Mrs. Parlavecchio filed a motion to have the confiscated sperm returned. Since sperm is not an illegal substance, her attorney argued that she was legally entitled to the seminal fluid. Federal prosecutor Wayne Samuelson argued "It's fruits of the crime. It's contraband." District judge J. Muir agreed.


First addressing the matter of jurisdiction, the court held it had jurisdiction to address the matter rather than a New York court where the sperm was seized and was being held. The court then denied the motion based on the "clean hands" doctrine.


According to the court, "No principle is better settled than the maxim that he who comes into equity must come with clean hands and keep them clean throughout the course of litigation...." The court held that to grant Mrs. Parlavecchio's motion "would constitute judicial approval of her criminal activities and reward her for her crime."


Parlavecchio's attorney, Eugene Tinari, argued that Maria Parlavecchio simply wanted "the chance to conceive a child, to create a family, to become a mother, and to enjoy the companionship and love of a son or daughter." Tinari's plea for compassion was not good enough. The motion for the return of property was denied and the seminal fluids were ordered destroyed. See: United States v. Parlavecchio, 192 F. Supp.2d 349 (MD PA 2002). In an unpublished opinion, the Third Circuit affirmed that Parlavecchio was not entitled to the return of her husband's semen. See: United States v. Parlavecchio, 57 Fed.Appx. 917 (3rd Cir. 2003).


Over a dozen people, including four guards, have been convicted in the sperm smuggling caper. On August 21, 2003, Granato was sentenced to 16 months in prison, to be served after he completes his murder and racketeering sentences in 2012. Granato plead guilty to smuggling sperm out of the prison. In pleading for leniency for her husband, Regina Granato, 40, said the sperm smuggling was "made out of pure love. We love our daughter, and it is her that gives us the only joy and pleasure we have," she told the court.


A majority of the world's prison systems allow prisoners to have conjugal visits with their spouses. Coupled with its use of the death penalty and mass imprisonment with draconian sentences as tools of social policy, the United States is one of the few countries which does not permit prisoners to have conjugal visits with spouses. This hostility to families also translates into a virtually universal ban on artificial insemination which leads to situations where the spouses of prisoners become criminals simply for trying the exercise the most basic human right of having a family. Ignorance of penal policies in other parts of the world prevents most Americans from realizing just how far out of synch American criminal justice policies are with the rest of the world. State prisons in New York, California, Washington, Mississippi and New Mexico allow prisoners to have private visits with family members, but most have significantly restricted access to these programs in the past ten years while some states, Wyoming and South Carolina, completely eliminated them.


Source: The Herald

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Related legal cases

United States v. Parlavecchio

[U] United States v. Parlavecchio, 57 Fed.Appx. 917 (3d Cir. 01/09/2003)

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


[2] No. 02-1887


[3] 57 Fed.Appx. 917, 2003


[4] January 9, 2003


[5] UNITED STATES OF AMERICA APPELLEE
v.
MARIA PARLAVECCHIO APPELLANT


[6] On Appeal from the United States District Court for the Middle District of Pennsylvania (No. 00-CR-312) District Judge: The Honorable Malcolm Muir


[7] Michael P. Smith (argued) 27 Elk Street Albany, NY 12207 Attorney for Appellant


[8] Wayne P. Samuelson (argued) Office of the United States Attorney 240 West Third Street Suite 316 Williamsport, PA 17701 Attorney for Appellee


[9] Before: Sloviter, Fuentes, Circuit Judges, FULLAM,*fn1 District Judge


[10] The opinion of the court was delivered by: Fuentes, Circuit Judge.


[11] UNPUBLISHED


[12] Argued on November 1, 2002


[13] OPINION OF THE COURT


[14] Maria Parlavecchio ("Mrs. Parlavecchio") appeals the dismissal of her motion for the return of property filed pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. For the reasons set forth below, we affirm the judgment of the District Court.


[15] I.


[16] A.


[17] On December 13, 2000, a grand jury sitting in the Middle District of Pennsylvania returned an eleven-count indictment charging Mrs. Parlavecchio and two other individuals with, among other things, conspiracy to bribe a public official and conspiracy to provide prohibited objects to an inmate. *fn2 See 18 U.S.C. §§ 371, 1791. On January 18, 2001, Mrs. Parlavecchio was arraigned on the superseding charges to which she entered a plea of not guilty. After discussions with the government, Mrs. Parlavecchio pleaded guilty on August 29, 2001 to one count of providing an inmate with prohibited objects, in this case, "food stuffs, toiletries and sperm kits."


[18] In connection with Mrs. Parlavecchio's guilty plea and sentencing, the District Court found the following facts undisputed. Mr. Parlavecchio was an inmate at the Allenwood Federal Correctional Institution ("Allenwood") serving a sentence on a prior conviction. He and his co-conspirators bribed a corrections officer at Allenwood who agreed to obtain food, toiletries, and cryogenic sperm preservation kits from Mrs. Parlavecchio and to deliver them to Mr. Parlavecchio. According to the District Court, "Mr. Parlavecchio would then fill the sperm preservation kits with his seminal fluids and the kits would be returned to [the Allenwood corrections officer] who would transport the kits from the prison to Mrs. Parlavecchio." United States v. Parlavecchio, 192 F. Supp. 2d 349, 350 (M.D. Pa. 2002). Thereafter, Mrs. Parlavecchio took the sperm kits to the Park Avenue Fertility Clinic in New York City for preservation. In or about October 2000, Mrs. Parlavecchio directed that her husband's seminal fluids be forwarded to her obstetrician and gynecologist, Dr. Cecilia Schmidt-Sarosi, whose office was also in New York City. The Court found that one of the principal objects of the conspiracy was to enable Mrs. Parlavecchio to conceive a child through artificial insemination of her husband's sperm.


[19] During the government's investigation, agents uncovered the existence of Mr. Parlavecchio's seminal fluid and its location-the New York City office of Dr. Schmidt-Sarosi. Government agents communicated with Dr. Schmidt-Sarosi and specifically requested that she not release the preserved sperm to anyone. Dr. Schmidt-Sarosi complied. Despite requests from Mrs. Parlavecchio, Dr. Schmidt-Sarosi refused to release Mr. Parlavecchio's seminal fluid.


[20] Unable to obtain her husband's sperm, Mrs. Parlavecchio moved pursuant to Rule 41(e) for the return of the seminal fluid. The circumstances under which that motion was made have some relevance to the issues on appeal. Mrs. Parlavecchio's counsel stated his intention to file the motion at his client's sentencing. After the District Court issued its sentence, but before judgment was entered, counsel for Mrs. Parlavecchio informed the court of his intent to file a motion for return of property and sought a briefing schedule. At that point, it is clear that the District Court was still exercising its supervisory authority in the matter as it brokered a stay of the destruction of the seminal fluid pending the briefing on Mrs. Parlavecchio's Rule 41(e) motion. The Government agreed to refrain from destroying Mr. Parlavecchio's preserved sperm until a definitive ruling on Mrs. Parlavecchio's motion.


[21] B.


[22] Upon the conclusion of briefing, the District Court held, at the outset, that it had ancillary jurisdiction to entertain Mrs. Parlavecchio's Rule 41(e) motion as a civil equitable proceeding arising out of the underlying criminal action. Parlavecchio, 192 F. Supp. 2d at 352.


[23] Furthermore, the District Court found that the criminal conduct to which Mrs. Parlavecchio pleaded guilty was conspiracy to bribe a public official, that is, "the illegal payment of money in exchange for receiving seminal fluids from Mrs. Parlavecchio's husband." Id. In essence, Mrs. Parlavecchio was seeking a return of the very fruits of her criminal activity. The District Court held, therefore, that a return of the seminal fluid would violate the basic principle that a claimant in a civil equitable proceeding must come into court with "clean hands." Id. The District Court declined to exercise its equitable powers to aid Mrs. Parlavecchio.


[24] As the summary of the procedural history suggests, Mrs. Parlavecchio finds herself in the position of adopting diametrically opposed positions in the same case. In the District Court, she was the movant under Rule 41(e) and thus invoked the court's ancillary jurisdiction. Having lost, she now claims on appeal that (1) the District Court never had jurisdiction to address the merits of her motion; and (2) in any event, the Middle District of Pennsylvania was not the proper venue. *fn3


[25] II.


[26] The District Court had ancillary jurisdiction to entertain Mrs. Parlavecchio's motion for the return of property pursuant to Rule 41(e). See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999); Rufu v. United States, 20 F.3d 63, 65 (2d Cir. 1994). Because Mrs. Parlavecchio pleaded guilty and because her husband's seminal fluid is no longer "intimately involved in the criminal process," we have jurisdiction to review the District Court's final order denying her motion. Government of the Virgin Islands v. Edwards, 903 F.2d 267, 271 (3d Cir. 1990). "We review the District Court's decision to exercise its equitable jurisdiction for abuse of discretion." Chambers, 192 F.3d at 376.


[27] III.


[28] Mrs. Parlavecchio advances two principal arguments on appeal. First, she contends that the District Court did not have a basis for exercising subject matter jurisdiction over her motion in the first place. She argues that Rule 41(e), as a rule of procedure, cannot by itself confer subject matter jurisdiction upon the court. Mrs. Parlavecchio believes that the only basis for subject matter jurisdiction rests with federal question jurisdiction pursuant to 28 U.S.C. § 1331. On that basis, she contends that Rule 41(e) may only be triggered if the property in question was actually and physically seized by the government in violation of the Fourth Amendment.


[29] Second, Mrs. Parlavecchio contends that venue was improper in the Middle District of Pennsylvania. It is undisputed that the property at issue in her Rule 41(e) motion was located in Dr. Schmidt-Sarosi's office in New York City during the relevant time period. Mrs. Parlavecchio relies on a decision from the Fourth Circuit Court of Appeals, holding that a post-conviction motion for the return of property must be filed in the district in which the property was seized and may not be filed in the district in which the defendant was prosecuted, should those two locations be different. See United States v. Garcia, 65 F.3d 17, 20-21 (4th Cir. 1995). Therefore, Mrs. Parlavecchio argues that her motion should have been dismissed on these grounds as well.


[30] At the outset, we reiterate the well-settled principle that the government is permitted to seize evidence for use in a criminal investigation and trial, but that such property must be returned once criminal proceedings have concluded, unless the property is contraband or subject to forfeiture. Chambers, 192 F.3d at 376 (citing United States v. 608 Taylor Ave., Apartment 302, 584 F.2d 1297, 1302 (3d Cir. 1978)). Application of this fundamental principle clearly counsels against returning the fruits of her admitted criminal activity to Mrs. Parlavecchio.


[31] We find no merit in Mrs. Parlavecchio's contention that the District Court lacked subject matter jurisdiction. Our decisions have consistently held that District Courts have jurisdiction to entertain post-conviction motions for the return of property and that such motions shall be treated as civil actions in equity. United States v. Bein, 214 F.3d 408, 411 (3d Cir. 2000) ("A district court has jurisdiction to entertain a motion for return of property even after the termination of criminal proceedings against the defendant and such an action is treated as a civil proceeding for equitable relief."); United States v. McGlory, 202 F.3d 664, 670 (3d Cir. 2000); Chambers, 192 F.3d at 376. Implicit in these decisions is our recognition that the District Courts' jurisdiction to entertain Rule 41(e) motions is ancillary to the underlying criminal proceedings and that subject matter jurisdiction rests upon the District Courts' supervisory authority over these ancillary proceedings. See, e.g., Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995) ("[T]he district court where the claimant was tried has subject matter jurisdiction ancillary to its criminal jurisdiction to hear the equitable action.").


[32] Therefore, Mrs. Parlavecchio's contention that 28 U.S.C. § 1331 must be the basis of subject matter jurisdiction in the context of Rule 41(e) is unsupported. Accordingly, her unfounded belief that only an actual, physical seizure of property in violation of the Fourth Amendment will trigger a Rule 41(e) motion must also be rejected. In any event, we have noted previously that the 1989 amendments to Rule 41(e) eliminated the limitation "to property held following an unlawful search or seizure. Now, any person aggrieved by 'the deprivation of property' may file a Rule 41(e) motion to require the government to return the property." Edwards, 903 F.3d at 273. Thus, we hold that the District Court had subject matter jurisdiction to entertain Mrs. Parlavecchio's Rule 41(e) motion.


[33] Having found that the District Court properly exercised jurisdiction over Mrs. Parlavecchio's motion, we also find that, under the circumstances present here, the Middle District of Pennsylvania was the proper venue. We recognize a split in authority among the Circuit Courts as to the proper venue for a post-conviction motion for return of property. This Court has not addressed directly the venue issue. Mrs. Parlavecchio cites the Fourth Circuit Court of Appeals' decision in Garcia to support her contention that the Middle District of Pennsylvania was not the proper venue for her motion, as her husband's seminal fluid was located in New York City. 65 F.3d at 20-21. The government notes, however, that the Second and Eighth Circuit Courts of Appeal have held that in the exercise of its ancillary jurisdiction, the district in which the Rule 41(e) claimant is tried is a proper venue for the motion. United States v. Giovanelli, 998 F.2d 116, 118 (2d Cir. 1993); Thompson, 47 F.3d at 975.


[34] Given the circumstances present here, we agree that venue was proper in the Middle District of Pennsylvania - the district in which Mrs. Parlavecchio pleaded guilty. We underscore that Mrs. Parlavecchio's request for motion practice was made immediately after the District Court issued her sentence, but before judgment was formally entered. Also before judgment was entered, the District Court arranged a stay of the destruction of the seminal fluid pending its decision on the motion. The government represented on the record that it would comply with the stay. In short, the District Court had not relinquished its supervisory authority over the matter and had the government breached its obligation pursuant to the stay, the Court would have been able to invoke its disciplinary powers. Given these circumstances, logic favors permitting the District Court to retain jurisdiction and venue over these on-going proceedings to decide the Rule 41(e) motion in the interest of judicial economy. Thompson, 65 F.3d at 21 (Murnaghan, J., dissenting).


[35] Thus, we hold that (1) the District Court had ancillary jurisdiction to entertain Mrs. Parlavecchio's Rule 41(e) motion; and (2) venue was proper in the Middle District of Pennsylvania. Although Mrs. Parlavecchio has not challenged the merits of the District Court's decision on appeal, we note our concurrence with the District Court in that regard. The District Judge properly refused to exercise its equitable powers to assist a claimant from recovering the fruits of her criminal activity.


[36] As a final matter, we note, in passing, that on April 29, 2002, the Supreme Court ordered the most recent amendments to Rule 41(e). Upon taking effect, the most recent amendments will put to rest any debate relating to the proper venue for a post-conviction Rule 41(e) motion. The new rule expressly requires post-conviction motions for the return of property to be made in the district where the property at issue was seized. Rule 41(e) is replaced in the amendments by Rule 41(g) which proposes that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized." App. at A-112. Although we agree with Mrs. Parlavecchio that the amended Rule 41(g) will eliminate much of the confusion surrounding venue for post-conviction motions for return of property, we cannot concur that the amendments should control the District Court's reading of Rule 41(e) at the time its decision was made. Under the circumstances present here, it was not an abuse of discretion for the District Court to exercise subject matter jurisdiction over Mrs. Parlavecchio's Rule 41(e) motion filed in the Middle District of Pennsylvania.


[37] IV.


[38] For the reasons set forth above, we AFFIRM the judgment of the District Court.


[39] Julio M. Fuentes Circuit Judge



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[40] *fn1 The Honorable John P. Fullam, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.


[41] *fn2 The two other individuals named in the indictment were Antonio Parlavecchio ("Mr. Parlavecchio"), Mrs. Parlavecchio's husband, and John Alite ("Alite"), a co-conspirator.


[42] *fn3 Mrs. Parlavecchio does not challenge the District Court's ultimate disposition on the merits that she was not entitled to the return of the fruits of her criminal activity. We limit ourselves accordingly to the jurisdictional issues presented in her appeal.

United States v. Parlavecchio

UNITED STATES OF AMERICA vs. MARIA PARLAVECCHIO



No. 4:CR-00-312-03



UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA



192 F. Supp. 2d 349; 2002 U.S. Dist. LEXIS 5438



March 1, 2002, Decided

March 1, 2002, Filed







DISPOSITION: [**1] Motion entitled "Motion for Return of Property Pursuant to Fed.R.Crime. 41(e)" filed by Defendant Maria Parlavecchio denied.









COUNSEL: For United States of America: Wayne P. Samuelson, Esq., Office of the U.S. Attorney, Williamsport, PA.


For Maria Parlavecchio: Eugene P. Tinari, Esq., Philadelphia, PA.



JUDGES: Malcolm Muir, U.S. District Judge.



OPINIONBY: Malcolm Muir



OPINION: [*349]

ORDER

March 1, 2002

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On December 13, 2000, a federal grand jury returned a 10-count superseding indictment charging John Alite, Antonino Parlavecchio and Maria Parlavecchio with, inter alia, conspiracy in violation of 18 U.S.C. § 371. On August 29, 2001, John Alite and Maria Parlavecchio pled guilty to count 6 of the superseding indictment and Antonino Parlavecchio, the husband of Maria Parlavecchio, pled guilty to Count 7 of the superseding indictment. Count 6 charged John Alite and Mrs. Parlavecchio with providing a prohibited object to an inmate, namely Mr. Parlavecchio at the Allenwood Federal Prison in violation of 18 U.S.C. § 1791(a)(1). Count 7 charged Mr. Parlavecchio with possession of a prohibited [*350] object in violation [**2] of 18 U.S.C. § 1791(a)(2).

On August 29, 2001, Mrs. Parlavecchio entered a plea of guilty to Count 6 of the superseding indictment. A presentence report was received by the court on November 23, 2001. No objections were filed to the presentence report. On December 3, 2001, Mrs. Parlavecchio was sentenced to a one-year term of probation. No appeal was filed by Mrs. Parlavecchio.

On February 1, 2002, Mrs. Parlavecchio filed a motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e). The motion became ripe for disposition on February 28, 2001, when Mrs. Parlavecchio elected not to file a reply brief.

The presentence report and briefs filed in this case reveal that the following facts are undisputed. In furtherance of the conspiracy alleged in the superseding indictment Mrs. Parlavecchio provided toiletries, foodstuffs and cryogenic sperm preservation kits to her husband through Troy Kemmerer who was employed as a correctional officer at the prison. It was part of the conspiracy that in exchange for receiving $ 5000 Mr. Kemmerer would obtain the sperm kits from Mrs. Parlavecchio and deliver the kits to Mr. Parlavecchio. Mr. Parlavecchio [**3] would then fill the sperm preservation kits with his seminal fluids and the kits would be returned to Mr. Kemmerer who would transport the kits from the prison to Mrs. Parlavecchio. Mrs. Parlavecchio would thereafter transport the kits or cause them to be transported to the Park Avenue Fertility Clinic in New York City. The seminal fluids were removed from the cryogenic sperm preservation kits and preserved at the fertility clinic. On or about October 2, 2000, Mrs. Parlavecchio directed that the seminal fluids be forwarded to her Obstetrician and Gynecologist, Cecilia Schmitdt-Sarosi, M.D., whose office is also located in New York City. One of the purposes of the conspiracy was to enable Mrs. Parlavecchio to conceive a child by her husband through artificial insemination.

A separate indictment was returned against Mr. Kemmerer. After Mr. Kemmerer was arrested, the investigators learned of the existence of the stored seminal fluids. When the investigators learned of the stored seminal fluids a request was made of Dr. Schmitdt-Sarosi to retain the seminal fluids and not release or permit them to be used until further notice. Dr. Schmitdt-Sarosi honored that request. Mrs. Parlavecchio [**4] in the motion for return of property requests that the government return and relinquish control of the seminal fluids to her.

Federal Rule of Criminal Procedure 41(e) provides in relevant part as follows:


(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. . . . .


In the last ten years motions for return of property have been frequently litigated in district courts and Courts of Appeals.

The first issue that we must consider is whether we have jurisdiction to entertain Mrs. Parlavecchio's motion. In its brief in opposition to Mrs. Parlavecchio's motion the government questioned whether we have jurisdiction to entertain the motion because the seminal fluids were "seized" in New York City. Rule 41(e) appears to state that a motion for return of property should be filed "in the district court for the district in which the property was seized[.]" The Court of Appeals for this [*351] circuit has not addressed the issue. [**5] The Courts of Appeals that have addressed this issue have arrived at different conclusions.

In Thompson vs. Covington, 47 F.3d 974 (8th Cir. 1995) the motion for return of property was filed in the district where the property was seized and not where the case was tried. The district court dismissed the action with prejudice. The Court of Appeals held that "post-conviction filings for return of property seized in connection with a criminal case are treated as civil equitable actions, and the district court where the claimant was tried has subject-matter jurisdiction ancillary to its criminal jurisdiction to hear the equitable action." Id. at 975. The Court of Appeals vacated the district court order and directed the "district court to dismiss the case without prejudice so that Thompson may refile, if he wishes, in the proper district court." Id.

The Court of Appeals for the Second Circuit has held that the district court in which a defendant was tried had ancillary jurisdiction to hear defendants post-trial motion for return of seized property despite the fact that the motion was brought after the conclusion of criminal proceedings in a different district [**6] than that in which the property was seized. United States vs. Giovanelli, 998 F.2d 116, 118-19 (2d Cir. 1993). The Court emphasized that such a motion for return of property where the criminal action has been terminated "'is treated as a civil equitable proceeding even if styled as being pursuant to Fed.R.Crim.P. 41(e).'" Id. at 118 (emphasis added)(quoting Soviero vs. United States, 967 F.2d 791, 792-93 (2d Cir. 1992)).

Contrary to the above cases, the Court of Appeals for the Fourth Circuit has held that after a criminal proceeding has terminated a Rule 41(e) motion must be filed in the district where the property was seized. United States vs. Garcia, 65 F.3d 17, 20 (4th Cir. 1995). In Garcia the Court of Appeals further held that because the property at issue was seized in Florida only the district court in Florida had jurisdiction. However, there was a very succinct and thoughtful dissent in that case in which Circuit Judge Murnaghan pointed out that


contrary to the majority's assertion, I do not find that the language of Rule 41(e) is dispositive of the issue of jurisdiction. Rule 41(e) asserts merely the positive [**7] rule that a person aggrieved by an (sic) deprivation of property "may move the district court for the district in which the property was seized for the return of the property." Fed.R.Crim.P. 41(e) (emphasis added). It in no way therefore mandates the negative rule that such a person "may not sue elsewhere." Thus, at the very least, the language of the rule does not preclude the application of general principles of ancillary jurisdiction to the case at bar.


Ancillary jurisdiction is afforded in special cases to courts, which would otherwise lack jurisdiction, in order to ensure that a particular case is handled in its entirety by one court and to further the principles of judicial economy. Morrow v. District of Columbia, 135 U.S. App. D.C. 160, 417 F.2d 728, 740 (D.C.Cir. 1969). In particular, ancillary jurisdiction is appropriate where: (1) the ancillary matter arises from the same transaction which was the basis of the main proceeding, or arises during the course of the main proceeding, or is an integral part of main proceeding; (2) the ancillary matter can be determined without a substantial new fact-finding proceeding; (3) the determination of the ancillary [**8] matter would not deprive a party of a substantial procedural or substantive right; and (4) the ancillary matter can be settled to protect the integrity of the main proceeding or to ensure [*352] that the disposition in the main proceeding will not be frustrated. The application of those principles to the instant case suggests that ancillary jurisdiction would be appropriate here in light of the fact that all of the other aspects of the government's case against Garcia were handled by the district court for the Eastern District of North Carolina.


Additionally, the majority's interpretation of Rule 41(e) would be most unfortunate in any of the numerous cases in which the . . . seizure of property occurs in several districts rather than in one district. . . . Indeed, under the majority's interpretation of the rule, persons whose property has been seized in several districts would be forced to file separate post-trial motions for return of property . . . . The basic principles of judicial economy suggest that such an outcome would be regrettable and unduly burdensome.


65 F.3d at 21. We conclude based on Thompson, Giovanelli and the dissent of Circuit Judge Murnaghan in Garcia [**9] that we have ancillary jurisdiction to entertain Mrs. Parlavecchio motion for return of property and that the motion will be treated as a civil equitable proceeding. See also United States vs. Chambers, 192 F.3d 374, 376 (3d Cir. 1999)("Such an action is treated as a civil proceeding for equitable relief.").

A basic principle applicable to this case is that one requesting the court to exercise its equitable powers must come into court with "clean hands." Gaudiosi vs. Mellon, 269 F.2d 873, 881-82 (3d Cir. 1959); see also Root Roofing Refining Co. vs. Universal Oil Products Co., 169 F.2d 514, 534 (3d Cir. 1948)("No principle is better settled than the maxim that he who comes into equity must come with clean hands and keep them clean throughout the course of the litigation, and that if he violates this rule, he must be denied all relief whatever may have been the merits of his claim."). The Court of Appeals in Gaudiosi further stated that "public policy not only makes it obligatory for courts to deny a plaintiff relief once his 'unclean hands' are established but to refuse to even hear a case under such circumstances." 269 F.2d at 882. [**10]

In this case Mrs. Parlavecchio is not entitled to equitable relief. The ultimate crime in this case was bribery, i.e., the illegal payment of money in exchange for receiving seminal fluids from Mrs. Parlavecchio's husband. The fruits of the crime for Kemmerer was the cash he received. From the other perspective, the fruits of the crime for Mrs. Parlavecchio were the seminal fluids she obtained in exchange for the cash she paid. Each of the parties to the illegal transaction gained something to which they were not legally entitled and which was the result of the criminal activity: Kemmerer received the cash and Mrs. Parlavecchio received the seminal fluids.

To permit Mrs. Parlavecchio to recover the illegally obtained seminal fluids would constitute judicial approval of her criminal activities and reward her for her crime. We will not use our equitable powers to aid a wrongdoer. Cf. United States vs. Farrell, 196 U.S. App. D.C. 434, 606 F.2d 1341, 1348-49 (D.C.Cir. 1979)(property delivered under an illegal contract cannot be recovered by any party in pari delicto). Mrs. Parlavecchio's motion for return of property will be denied.

NOW, THEREFORE, IT IS HEREBY ORDERED [**11] THAT:

1. The motion entitled "Motion for Return of Property Pursuant to Fed.R.Crime. 41(e)" (Doc. 83) filed by Maria Parlavecchio is denied.

2. Unless Mrs. Parlavecchio files a notice of appeal the government may after 30 days from the date of this order destroy the [*353] seminal fluids of Antonino Parlavecchio stored at the office of Dr. Schmitdt-Sarosi.

Malcolm Muir

U.S. District Judge