EFTA00191587

STOLT-NIELSEN, SA. 
U.S. 
Otems442 Fid 177 (3rdar. 
1 
ment."),I But their contention that the 
immunity they purportedly received under 
the Agreement precludes an indictment in 
the first place is belied by precedent, and 
we see no compelling reason to reach a 
different result in this case. 
• 
* 
• 
• 
• 
• 
[61 "[Al suit in equity does not lie 
where there is a plain, adequate and com-
plete remedy at law ... !that is) as com-
plete, practical and efficient as that which 
equity could afford." Terrace v. Thomp-
son, 263 U.S. 197, 214, 44 S.Ct. 15, 68 
L.Ed. 255 (1923). Here, Stolt-Nielsen and 
Wingfield have a practical and efficient—
and indeed complete—legal remedy avail-
able to them, i.e., access to a federal forum 
post-indictment in which they may assert 
the Agreement as a defense. Separation-
of-power concerns thus counsel against us-
ing the extraordinary remedy of enjoining 
the Government from filing the indict-
ments. Although courts have carved out a 
narrow exception to this rule in those 
6. In our view, the pretrial determination ap-
proved by the Seventh Circuit in Meyer does 
not conflict with the observations of the Fifth 
and Eighth Circuits that non-prosecution 
agreements of the sort involved in this case 
protect against the risk of conviction and pun-
ishment. not trial. See Bailey. 34 F.3d at 691; 
Bird, 709 F.2d at 392. For one thing, Bailey 
and Bird concerned attempted interlocutory 
appeals from district court denials of post• 
indictment claims that immunity agreements 
barred conviction, and as such were not con• 
cerned with the timing of the claims in the 
district court. In any event, it is not in the 
interest of defendants or the Government. 
once an indictment has been issued, to pro-
ceed with a trial before determining whether 
an immunity agreement bars conviction. We 
therefore agree with the Seventh Circuit that 
a pretrial hearing is appropriate in these 
circumstances. We note, however, that this 
timing is not essential. and a defendant may 
raise an immunity agreement as a defense 
during the trial. 
7. Because we conclude that the District Court 
lacked the power to enjoin the filing of indict-
187 
cases in which the very act of filing an 
indictment may chill constitutional rights, 
this case does not implicate that concern. 
Instead, we are guided by other cases 
from the Supreme Court and Courts of 
Appeals that lead us to conclude that non-
prosecution agreements may not form the 
basis for enjoining indictments before they 
issue. 
In this context, we conclude that the 
District Court lacked authority to employ 
the extraordinary remedy of enjoining the 
Government's indictments of Stole—Nielsen 
and Wingfield. The judgment is therefore 
reversed and the case remanded with the 
instruction that the District Court dismiss 
their complaints with prejudice? 
ments in this case, we do not consider, at this 
stage, the Government's alternative argument 
that the District Court inappropriately con-
cluded that Stolt-Nielsen's and Wingfield's 
actions between March and November 2002 
did not violate the terms of the Agreement. 
As stated, the District Courts lack of authori-
ty compels us to reverse the judgment and 
remand to that Court so that it may dismiss 
the complaints. Because the judgment is 
t 
re-
versed. it lacks preclui e effect. See, e.g., 
Joseph A. ex ref. Wolfe 
Ingram, 275 F.3d 
1253, 1266 (10th Cir.200 ("A judgment that 
has been vacated, reversed• or set aside on 
appeal is thereby deprived of all conclusive 
effect. both as res judicata and as collateral 
estoppel.-  (internal quotation marks omit-
ted)). Therefore, if the appellees assert the 
Agreement as a defense after they arc indict-
ed, the District Court must consider the 
Agreement anew and determine the date on 
which Stolt-Nielsen discovered its anticom-
petitive conduct. the Company's and Wing. 
field's subsequent actions, and whether, in 
light of those actions. Stolt-Nielsen complied 
with its obligation under the Agreement to 
take "prompt and effective action to termi. 
EFTA00191807

188 
442 FEDERAL REPORTER, 3d SERIES 
Earle B. GREGORY; Ken Blinko; Bet-
ty C. Coley; Vicki Grainger; Ethel E. 
Graves; Becky Haitian; John S. Hal-
sall, Ill; Jerry F. McDaniel; Veronica 
T. McDaniel; 
Laverne McKenzie; 
Marianne McKenzie; Nathan J. Neely; 
Zevie ti. Neely; Sulina Prather, Ka-
thryn Roddey; Gina Tibbs; John A. 
Tibbs; John C. Tibbs; Brenda D. 
Watts; Gerald D. Watts; C. Ann 
Williams; Henry M. Williams, 
Wesley L. Williams, Jr.; Grant 
; 
Tom Moore; Anna Nunnery; Charles 
Shope; Penelope Shope; Kathy An-
nette Wood; Sam Jones Wood; Ruth 
Ann M, Plaintiffs-Appellees, 
FINOVA CAPITAL CORPORATION, 
Defendant-Appellant. 
No. 05-2118. 
United States Court of Appeals, 
Fourth Circuit. 
Argued Feb. 2, 2006. 
Decided March 14, 2006. 
Background: Noteholders filed class ac-
tion securities fraud suit against now-
bankrupt issuer's principal lender. The 
United States District Court for the Dis-
trict of South Carolina, G. Ross Anderson, 
Jr., J., certified class, and lender appealed. 
Holding: The Court of Appeals, Luttig, 
Circuit Judge, held that class action was 
not superior method for fair and efficient 
adjudication of controversy. 
Reversed. 
King, Circuit Judge, concurred in part, 
dissented in part, and filed opinion. 
nate its part in the anticompetitive activity 
being reported upon discovery of the activi-
1. Federal Courts @'817 
District court's class certification deci-
sion is reviewed for abuse of discretion. 
Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. 
2. Federal Civil Procedure 4=172 
Party seeking class certification bears 
burden of proving entitlement to same. 
Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. 
3. Federal Civil Procedure e=187 
Class certification of noteholders secu-
rities fraud claims against now-bankrupt 
issuer's principal lender was abuse of dis-
cretion, absent showing that class action 
was superior method for fair and efficient 
adjudication of controversy; same claims 
were already pending against lender in 
bankruptcy adversary proceeding. Fed. 
Rules Civ.Proc.Rule 23(bX3), 28 U.S.C.A. 
ARGUED: Daniel P. Shapiro, Goldberg, 
Kohn, Bell, Black, Rosenbloom & Moritz, 
Ltd, Chicago, Illinois, for Appellant. Gil-
bert Scott Bagnell, Bagnell & Eason, 
L.L.C., Columbia, South Carolina, for Ap-
pellees. ON BRIEF: Elizabeth Van Dor-
en Gray, Allen J. Barnes, Sowell, Gray, 
Stepp & Laffitte, P.L.L.C., Columbia, 
South Carolina; Steven A. Levy, Andrew 
R. Cardonick, Goldberg, Kohn, Bell, Black, 
Rosenbloom & Moritz, Ltd, Chicago, Illi-
nois, for Appellant. Chad McGowan, S. 
Randall Hood, McGowan, Hood, Felder & 
Johnson, 
Rock 
Hill, South Carolina; 
Randall M. Eason, Bagnell & Eason, 
L.L.C., Lancaster, South Carolina, for Ap-
pellees. 
Before WIDENER, LUTTIG, and 
KING, Circuit Judges. 
EFTA00191808

Page 1 of 2 
westlaw
Not Reported in F.Supp.2d 
Not Reported in F.Supp.2d, 2007 WL 1113646 (M.D.Pa.) 
(Cite as: 2007 WL 1113646 (M.D.Pa.)) 
Only the Westlaw citation is currently available. 
United States District Court, 
M.D. Pennsylvania. 
Michael Curtis REYNOLDS, Petitioner 
John GURGANUS, Prosecutor, Respondent. 
Civil No. 4:CV-07-675. 
April 12, 2007. 
Michael Curtis Reynolds, Scranton, PA, pro se. 
Dennis Pfannenschmidt, U.S. Attorneys Office, 
Harrisburg, PA, for Respondent. 
MEMORANDUM 
JAMES F. McCLURE, JR., United States District 
Judge. 
Background 
*1 Michael Curtis Reynolds ("Petitioner"), an 
inmate presently confined in the Lackawanna 
County Prison, Scranton, Pennsylvania initiated this 
pro se petition for a writ of habeas corpus pursuant 
to 28 U.S.C. § 2241. Reynolds' petition is 
accompanied by an in forma pauperis application. 
For the reasons set forth below, Reynolds' petition 
will be dismissed as meritless. 
Named as sole Respondent is Assistant United 
States Attorney John Gurganus of the Middle 
District of Pennsylvania. This is the latest in a series 
of civil rights complaints and habeas corpus 
petitions filed by Reynolds which challenge the 
legality of his ongoing federal criaiinal prosecution 
in this district. See United States I Reynolds, Case 
No. 
3:05-CR-493. 
AUSA 
Gurganus 
is 
the 
prosecuting attorney. In his petition, Reynolds 
reasserts his previous claims that there has been a 
violation of his speedy Dial rights and perjured 
Page I 
testimony was presented before the grand jury. As 
relief, Reynolds seeks reversal of his federal 
criminal charges and release. 
Discussion 
Rule 4 ("Preliminary Consideration by the Judge") 
of the Rules Governing Section 2254 Cases in the 
United States District Courts, 28 U.S.C. foil. § 2254 
(1977) (applicable to § 2241 petitions under Rule 
1(b)) permits summary dismissal of i§ 2241 habeas 
corpus petition.. See, e.g., Patton 
Fenton, 491 
F.Supp. 156, 158-59 (M.D.Pa.1979). A judge may 
enter summary dismissal "pjf it plainly appears 
from the face of the petition and any exhibits 
annexed to it that the petitioner is not entitled to 
relief in the district court." Dismissal under Rule 4 
is appropriate "when the petition is frivolous, or 
obviously lacking in merit, or where ... the 
r
necessary facts 
be determined from the petition 
itself...." Allen 
Perini, 26 Ohio Misc. 149, 424 
F.2d 134, 141 ( th Cir.), cert. denied, 400 U.S. 906, 
1
1 S.Ct. 147, 27 L.Ed.2d 143 (1970). Accord Love 
Butler, 952 F.2d 10, 15 (1 st Cir.1991). 
As repeatedly noted by this Court, Reynolds has 
not yet been convicted or even tried of the federal 
criminal offenses underlying this action. [FN1] The 
Court of appeals for the Third circuit has observed 
that, "simply being indicted and forced to stand 
trial is not generally an injury for constitutional 
purposes but is rather one of the paint 
obligations of citizenship." Stolt-Nielsen, S .A. 
United States, 442 F.3d 177, 184 (3d Cir.200 
(internal citation omitted). More importantly, in 
Stott-Nielsen, the Court of Appeals indicated that a 
habeas corpus petition should not be entertained 
where the applicant has an available forum in which 
to assert his defenses toi fecleral criminal charges. 
See id. at 185; Deaver 
Seymour, 822 F.2d 66, 
69-70 (D.C.Cir.1987). Clearly, the Petitioner has an 
available and adequate remedy at law. Specifically, 
he may assert his present claims as well as any 
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Page 2 of 2 
Not Reported in F.Supp.2d 
Not Reported in F.Supp.2d, 2007 WL 1113646 (M.D.Pa.) 
(Cite as: 2007 WI, 1113646 (M.D.Pa.)) 
additional defenses/arguments before the judge 
presiding over his ongoing federal criminal 
proceedings. 
FN I. Petitioner's federal criminal trial is 
presently scheduled for May 29, 2007. 
*2 Furthermore, even if convicted of the pending 
federal criminal charges, the appropriate avenue for 
Reynolds to pursue his present arguments would be 
via a direct appeal, and if not successful therein, to 
then seek collateral relief under 28 U.S.C. § 2255. 
As Petitioner has been previously told, it is simply 
not appropriate for this Court to entertain his claims 
of speedy trial violation and perjured grand jury 
testimony via a pre-trial federal habeas corpus 
petition. If Reynolds wishes to pursue his present 
arguments, he must do so in his ongoing federal 
prosecution, or thereafter before the Court of 
Appeals. The petition for writ of habeas corpus will 
be denied. An appropriate Judgment will enter. 
ORDER 
In 
accordance 
with 
the 
accompanying 
Memorandum, IT IS HEREBY 
ORDERED 
THAT: 
1. Petitioner is granted leave to proceed in forma 
pauperis for the sole purpose of the filing of this 
action. 
2. Reynolds' habeas corpus petition is DENIED. 
3. The Clerk of Court is directed to close the case. 
4. Based on the Court's determination herein, there 
is no basis for the issuance of a Certificate of 
Appealability. 
Not Reported in F.Supp.2d, 2007 WL 1113646 
(M.D.Pa.) 
END OF DOCUMENT 
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Page 1 of 2 
Westlaw. 
173 Fed.Appx. 840 
Page I 
173 Fed.Appx. 840, 2006 WL 592928 (C.A.D.C.) 
(Cite as: 173 Fed.Appx. 840) 
H 
Miranda I. Gonzales 
C.A.D.C.,2006. 
This case was not selected for publication in the 
Federal Reporter.Please use FIND to look at the 
applicable circuit court rule before citing this 
opinion. District of Columbia Circuit Rule 28(c). 
(FIND CTADC Rule 28.) 
United States Court of Appeals,District of 
Columbia Circuit. 
Manuel A. MIRANDA, Appellant 
v. 
Alberto GONZALES, et al. Appellees. 
No. 05-5066. 
Feb. 16, 2006. 
Rehearing En Banc Denied May II, 2006. 
Background: 
Plaintiff 
filed 
complaint 
for 
injunctive and declaratory relief, seeking prevention 
of any criminal investigation related to past conduct 
as Senate aide and to immunize him from future 
prosecution. United States District Court 
for 
District of Columbia dismissed complaint, and 
plaintiff appealed. 
Holdings: The Court of Appeals held that: 
(1) plaintiff was not entitled to injunctive relief, and 
(2) denial of request for declaratory judgment was 
not abuse of discretion. 
Affirmed. 
West Headnote 
III Injunction II  f)105(1) 
Injunction 
21211 Subjects of Protection and Relief 
2121I(H) Matters Relating to Criminal Acts 
212k105 Criminal Prosecutions 
212k105(1) k. In General. Most Cited 
Cases 
Plaintiff was not entitled to injunctive relief to 
prevent criminal investigation related to past 
conduct as Senate aide and to immunize him from 
future prosecution; if indicted, plaintiff could 
protect his rights under First Amendment and raise 
defense under Speech and Debate Clause of federal 
criminal procedure rules. U.S.C.A. Const.Amend. I 
Fed.Rules Cr.Proc.Rule 12(b), 18 U.S.C.A. 
121 Declaratory Judgment 118A C=84 
118A Declaratory Judgment 
I ISAR Subjects of Declaratory Relief 
118A11(A) Rights in General 
118Ak84 k. Criminal Laws. Most Cited 
Cases 
Denial of request for declaratory relief with respect 
to complaint to prevent criminal investigation into 
plaintiffs past conduct as Senate aide and to 
immunize plaintiff from future prosecution was not 
abuse of discretion, absent showing of special 
circumstances, 
and 
given 
considerations 
of 
practicality 
and 
judicial 
administration. 
28 
U.S.C.A. § 2201(a); Fed.Rules Civ.Proc.Rule 57, 
28 U.S.C.A. 
*841 Appeal from the United States District Court 
for the District of Columbia. 
Arthur Duncan McKey, Hanson & Molloy, Adam 
Augustine Caner, Law Office of Adam A. Carter, 
Washington, DC, for Appellant. 
Neil Matthew Corwin, U.S. Attorney's Office, New 
York, NY, for Appellees. 
Before: 
and ROGERS, Circuit 
Judges, SII Mnior 
Circuit Judge. 
JUDGMENT 
PER CURIAM. 
"1 This case was considered on the record from 
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Page 2 of 2 
173 Fed.Appx. 840 
173 Fed.Appx. 840, 2006 WL 592928 (C.A.D.C.) 
(Cite as: 173 Fed.Appx. 840) 
the United States District Court for the District of 
Columbia and on the briefs by counsel. For the 
reasons set forth below it is 
ORDERED that the judgment from which this 
appeal has been taken be affirmed. Miranda 
appeals the district court's dismissal of his 
complaint to enjoin any criminal investigation 
related to his past conduct as a Senate aide and to 
immunize him from future prosecution. It is 
well-settled, however, that a court will not act to 
restrain a criminal prosecution if the moving party 
has an adequate remedy at law and will not suffer 
irreparable injury if denied equitable relief. See 
Deaver I Seymoj, 822 F.2d 66, 69 (D.C.Cir.1987) 
(citing Younger 
Harris, 401 U.S. 37, 91 S.O. 
746, 27 L.Ed.2 
669 (1971)). The district court 
correctly held that, if indicted, Miranda can protect 
his rights under the First Amendment and Speech or 
Debate Clause pursuant to Rule 12(b) of the Federal 
Rules of Criminal Procedure. F.R.Crim. P. 12(b) 
(2005) (upon indictment, defendant may raise by 
motion defense based on "defects in the institution 
of the prosecution"). See also Deaver, 822 F.2d at 
70 ("existence of Rule 12(b)( (3) ] suggests that 
appellant's constitutional challenge is not to be 
raised in a preindictment civil injunctive action"). 
[1] Miranda argues that without injunctive relief his 
First Amendment right will be "chilled" and that the 
chilling constitutes a special circumstance that 
*84 
him to injunctive
2
entitles 
relief under 
Dombrowski 
Pfister. 380 U.S. 479, 85 S.O. 
1116, 14 L.E . 
! 2d 22 (1965). As the district court 
pointed out, however, injunctive relief is not 
appropriate unless 
the 
party seeking it can 
demonstrate that his "First Amendment interests 
[are] either threatened or in fact being impaired at 
the time relief us] sought." Joint Appendix 66 
(quoting Wagner 
us
Taylor, 836 F.2d 566, 576 n. 76 
(D.C.Cir.1987)) 
(alteration 
in 
original). 
But 
Miranda himself alleges only that any infringement 
of his First Amendment right occurred while he was 
employed by the Senate. See Compl. 11 26-27, 
Joint Appendix 12-13 (alleging Senate Sergeant at 
Arms and Doorkeeper's investi tion chilled his 
speech rights). Compare Steffel I Thompson, 415 
U.S. 452, 461, 94 S.Ct. 1209, 39 L.Ed.2d 505 
(1974). 
Page 2 
[2] Miranda's argument that he is entitled to 
declaratory relief under the Declaratory Judgment 
Act, 28 U.S.C. § 2201, is likewise unavailing. 
While it is true, as Miranda states, that an adequate 
remedy at law does not preclude declaratory relief if 
such 
relief 
is 
otherwise 
appropriate, 
see 
Fed.R.Civ.P. 57, the decision whether to grant that 
relief is squarely within the district cou 
discretion. See28 U.S.C. § 2201(a); Wilton 
Seven Falls Co., 515 U.S. 277, 287-89, 1:5 S. 
2137, 132 L.Ed.2d 214 (1995); Hewitt 
Helms. 
482 U.S. 755, 762, 107 S.O. 2672, 96 L. 
.2d 654 
(1987). The district court failed to separately set 
out its basis for denying declaratory relief; instead 
it relied on general principles addressed to the 
inappropriateness of granting equitable relief here. 
This is not reversible error. See. e.g.. Deaver, 822 
F.2d at 71 (complaint sought both injunctive and 
declaratory relief; in dismissing complaint court 
did not explicitly state grounds for denying 
declaratory relief as it did for denying injunctive 
relief but stated "[p]rospective defendants cannot, 
by 
bringing 
ancillary 
equitable 
proceedings, 
circumvent 
federal 
criminal 
procedure"). 
The 
district court did not abuse its discretion in denying 
declaratory relief in the absence of special 
circumstances and given its "considerations of 
practicality and wise judicial administration." See 
Wilton, 515 U.S. at 288, 115 S.Ct. 2137. 
**2 Pursuant to D.C. Circuit Rule 36, this 
disposition will not be published. The Clerk is 
directed to withhold issuance of the mandate herein 
until seven days after resolution of any timely 
petition for rehearing or rehearing en bane. See 
Fed. R.App. P. 41(b); D.C.Cir. R. 41. 
C.A.D.C..2006. 
Miranda I. Gonzales 
173 Fed.Appx. 840, 2006 WL 592928 (C.A.D.C.) 
END OF DOCUMENT 
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EFTA00191812

IN RE SEIZURE OF ALL FUNDS 
577 
Clterst4 F35 S77 (2550r. 1995) 
dismiss the complaint for lack of subject 
matter jurisdiction. 
In re the SEIZURE OF ALL FUNDS IN 
ACCOUNTS IN the NAMES REGISTRY 
PUBLISHING, INC., Sterling Who's 
Who, Inc., Who's Who of Retailers, Inc., 
William's Who's Who, Inc., Who's Who 
Executive Club, Bruce Gordon, Who's 
Who Worldwide Registry, Inc., Publish-
ing Ventures, Inc., including but not 
limited to Marine Midland Bank Ac-
count Nos. 018-78090-3, 018-78047-4, 
018-78044-0, 018-78055-6, 018-78153-6, 
018-78173-0, Sterling National Bank & 
That Company of New York Account 
Nos. 036-79716-07, 031-13410-01, 031-
43102-01, Republic National Bank for 
Savings Account No. 2601001775, and All 
Funds Traceable Thereto. 
Bruce GORDON, Who's Who Worldwide 
Registry, Inc., Sterling Who's Who, Inc., 
Registry Publishing, Inc., William's 
Who's Who, Inc., Who's Who Executive 
Club, Publishing Ventures, inc., Who's 
Who of Retailers, Inc., Petitioners-Ap-
pellees, 
v. 
UNITED STATES of America, 
Respondent-Appellant. 
No. 474, Docket 95-6119. 
United States Court of Appeals, 
Second Circuit. 
Argued Aug. 81, 1996. 
Decided Oct. 17, 1996. 
Government appealed from order en-
tered in the United States District Court for 
the Eastern District of New York, Arthur D. 
Spat J., 887 F.Supp. 436, vacating ex parte 
seizure warrant authorizing seizure of funds 
belonging to companies and their founder 
that were allegedly proceeds of mail and wire 
fraud scheme involving companies' sales of 
memberships in various "who's who" regis-
tries. The Court of Appeals, Milton Pollack, 
Senior District Judge, sitting by designation, 
held that (1) remand was required for con-
sideration of new evidence to determine ex-
act nature of bargain between companies and 
members and thus whether salesmen's repre-
sentations to members were material, and (2) 
district court lacked authority to enjoin gov-
ernment from mailing additional question-
naires to members to obtain further evidence 
of probable cause. 
Vacated and remanded. 
1. Searches and Seizures 0, 83 
In order to seize property under civil 
forfeiture statute, government must demon-
strate that there was probable cause to be-
lieve that property is subject to forfeiture. 
18 U.S.C.A. 1 981. 
2. Searches and Seizures ta•83 
Whether probable cause exists must be 
determined on basis of totality of circum-
stances and, in context of civil forfeiture pro-
ceedings, such circumstances are not limited 
to evidence presented to magistrate who is-
sued warrant. 18 U.S.C_A. § 981. 
3. Forfeitures cla5 
Findings supporting district court's de-
termination as to probable cause to believe 
that property is subject to forfeiture are 
reviewed for clear error, but determination 
itself is conclusion of law reviewed do novo. 
18 U.S.CA. 
981. 
4. Postal Service e=35(5) 
Essential element of mail fraud is intent 
to defraud; in order to establish that defen-
dant acted with intent to defraud, govern-
ment must show that some actual harm or 
injury was contemplated by schemer. 18 
U.S.CA § 1341. 
5. Postal Service cs7035(11-n 
In order for sales tactics to rise to level 
of mail fraud, misrepresentations must be 
material to bargain that customer is induced 
EFTA00191813

578 
68 FEDERAL REPORTER, 3d SERIES 
to enter into with company. 18 U.S.C.A. 
1811. 
6. Forfeitures 0 ,5 
Determination that probable cause did 
not exist to believe that companies and their 
founder had committed mail or wire fraud in 
connection with sales of memberships in com-
panies' "who's who" registries, and thus that 
companies' funds were not subject to seizure, 
had to be remanded for reconsideration of 
nature of bargain between companies and 
members in light of members' responses to 
government questionnaires, and thus wheth-
er salesmen's representations could be con-
sidered material misrepresentations; while 
district court concluded that bargain between 
companies and members entailed purchase of 
membership in registry and companies mak-
ing available other services or products, new 
evidence showed that members had bar-
gained to join exclusive registries that would 
provide opportunities for networking among 
prominent group of individuals, and thus reg-
istries more exclusive in nature than ones 
whose members were merely culled from 
mailing lists. 18 U.S.C.A. if 981, 1341, 1343. 
7. Constitutional Law ew73 
Injunction ta.106(1) 
In context of government's investigation 
of alleged mail and wire fraud scheme, and 
effort to seize funds as proceeds of those 
schemes, district court lacked authority to 
enjoin government from mailing additional 
questionnaires to purported 
victims of 
scheme to obtain further evidence of proba-
ble cause; as incident to separation of pow-
ers, court may not interfere with free exer-
cise of discretionary powers of attorneys of 
United States in their control over criminal 
prosecutions. 
Barbara Underwood, Assistant United 
States Attorney, Brooklyn, NY (Zachary W. 
Carter, United States Attorney for the East-
em District of New York, Deborah B. 
Zwany, Arthur P. Hui, Sarah J. Lum, Gary 
R. Brown, Assistant United States Atter-
•7he Honorable Milton Pollack of the United 
States District Court for the Southern District of 
New York, sitting by designation. 
neys, Brooklyn, NY, of counsel) for Respon-
dent-Appellant. 
Vivian Shevita, Mount Kisco, New York 
(Gerald L Shargel, Jane Simkin Smith, Car-
ol E. Gette, New York City, of counsel) for 
Petitioners—Appellees. 
Before MINER and CALABRESI, Circuit 
Judges, and POLLACK, Senior District 
Judges 
MILTON POLLACK, Senior District 
Judge: 
The government appeals from an order 
entered in the United States District Court 
for the Eastern District of New York (Spat, 
J.) vacating an ex park seizure warrant that 
authorized the seizure of funds belonging to 
petitioners-appellees Bruce Gordon and sev-
eral companies under Gordon's control, and 
releasing funds seized pursuant to the war-
rant The district court determined that. the 
government failed to establish probable 
cause to believe that petitioners had commit-
ted mail or wire fraud In violation of 18 
U.S.C. §4 1341 and 1343. 
For the reasons that follow, we vacate the 
order and remand for Blether findings and 
reconsideration in light of new evidence. 
BACKGROUND 
Petitioner Bruce Gordon founded and owns 
a controlling interest in the companies in-
volved in this case, including: Who's Who 
Worldwide Registry, Inc., Sterling Who's 
Who, Inc., Who's Who Executive Club, Who's 
Who Worldwide Communications, Tribute 
Magazine, Registry Publishing, Inc., Publish-
ing Ventures, Inc., Who's Who of Retailers, 
and William's Who's Who (collectively, the 
"Companies"). The oldest of the Companies, 
Who's Who Worldwide Registry, Inc., was 
incorporated in 1989.1
Gordon formed the Companies in order to 
solicit individuals to purchase memberships 
in the registries published by the Companies. 
The Companies' salespersons contacted po-
t. These companies hare no affiliation with 
"Who's Who in America," published by Reed 
Elsevier. Inc., and first published in 1599. 
EFTA00191814

IN RE SEIZURE 
acesees F.341 577 
tential customers either by telephone or by 
sending solicitation letters through the mail. 
The salespersons explained to potential cus-
tomers that, upon becoming a member, they 
would receive a registry containing biograph-
ical data and addresses of all members, a 
personalized plaque, and a camera-ready 
logo. In addition, customers were told that, 
as members, they could purchase a CD-
ROM version of the registry, a subscription 
to Tribute, a magazine containing profiles of 
other members, a credit card, and discounted 
telephone and travel services. The salesper-
sons also stressed that membership was ex-
clusive and prestigious, and that membership 
would provide valuable networking opportu-
nities. As a result of their sales efforts, the 
Companies had acquired more than 60,000 
members by the end of 1994. 
In July of 1991, based on complaints re-
garding the Companies' business practices 
received from the New York State Depart-
ment of Law, the New York State Consumer 
Protection Board and the Better Business 
Bureau, the United States Postal Inspection 
Service commenced an investigation into 
Gordon and the Companies. The investiga-
tion culminated in a complaint and affidavit 
(the "Complaint"), sworn to by Postal Inspec-
tor Martin T. Biegelman. In the Complaint, 
Biegelman alleges that the Companies' bust-
ness operations constitute a "telemarketing 
boiler room" operation using "high pressure 
telephone sales pitches that misrepresent the 
identity of the Company and the nature of its 
products in order to defraud customers into 
purchasing one of the Company's 'Who's 
Who' directories and other products." lie-
gelman contends that the Companies' sales-
persons made fraudulent representations re-
garding the nomination and selection process 
for membership in the registries, the pres-
tige of the registries, free placement in the 
registries, the identity of other members of 
the registries, the usefulness of the registries 
as a networking tool, and the intention of the 
Companies to hold seminars and conferences. 
Since 1989, according to Biegelman, Gordon 
and the Companies have defrauded their cus-
tomers of more than $22 million dollars. The 
Complaint concludes with the allegation that 
the Companies' use of the mail and tele-
phones to conduct the solicitations was in 
OF ALL FUNDS 
579 
US Cir. 1995) 
Airtherance of a scheme to defraud, and 
therefore constitutes a violation of the mail 
and wire fraud statutes. 
On March 22, 1995, based on the allega-
tions in the Complaint, United States Magis-
trate Judge Azrack signed arrest warrants 
for Gordon and twenty-nine of the Compa-
nies' salespersons. The following day, the 
government obtained an a parte warrant of 
seizure, pursuant to Fed.FLCrim.P. 41, autho-
the seizure of funds deposited in cer-
tain of the Companies' bank accounts. 
Thereafter, on March 30, 1995, the govern-
ment seized over $511,000 of the Companies' 
funds, allegedly the proceeds of the scheme 
to defraud. As part of its investigation, the 
government also began contacting and send-
ing questionnaires to those who purchased 
registry memberships. 
On April 10, 1996, the district court issued 
a temporary restraining order ("TRO") en-
joining the government from sending addi-
tional questionnaires to members of the 
Companies' registries. On April 19 and 20, 
the district court held a probable cause hear-
ing pursuant to United States tz All Assets of 
Statewide Auto Pads, Inc. 971 F2d 896, 906 
(2d Cir.1992) and United States v. Monsanto, 
924 F2d 1186, 1203 (2d Cir.1991). 
On May 30, 1995, the district court vacated 
the seizure warrant, finding that the govern-
ment had failed to establish that there was 
probable cause to believe that the Companies 
had committed mail or wire fraud. Relying 
primarily on United States v. Regent Office 
Supply Co., 421 F.2d 1174 (2d Cir.1970), the 
court determined that the representations 
made by the Companies' salespersons were 
not part of a scheme to defraud. The court 
found that some of the representations were 
not false, such as the Companies statements 
that their registries were "selective" and "in-
valuable tools for networking among mem-
bers." Other representations were found by 
the court to be false or misleading but not 
material, such as the Companies' statements 
that they did not acquire new members by 
solicitation for their directories and that "the 
majority of new candidates who are nominat-
ed are not accepted for inclusion." The dis-
trict court concluded that the Companies' 
EFTA00191815

580 
68 FEDERAL REPORTER, 3d SERIES 
representations did "not constitute a scheme 
or artifice to defraud, either singly or in the 
aggregate." In addition to vacating the sei-
zure warrant, the district court vacated the 
TRO against the government. 
The government then moved for a stay of 
the release of the seized funds. On June 7, 
1995, the district court granted a temporary 
stay pending application to this court for a 
further stay. On the same day, the govern-
ment filed a Notice of Appeal of the district 
court's May 30 Order. On June 9, the court 
released $220,000 of the seized funds. On 
June 26, 1995, we denied the government's 
motion for a stay, pending appeal to this 
court, of the partial release of seized funds 
granted by the district court. In re AU 
Funds in Accounts in Neonate Registry Pub. 
lislting, Inc., 58 F.3d 855 (24 Cir.1996). 
Since the district court's May 30, 1995 
vacatur of the TRO, the government has 
redesigned its questionnaire in order to gen-
erate from the registry members information 
regarding the materiality of the misrepresen-
tations. The government now has mailed 
over 49,000 questionnaires to the members, 
and has received approximately 7000 re-
sponses. The government has moved in this 
co
or permission to supplement the rec-
ord
th the responses to these question-
naires or, in the alternative, for remand to 
allow the district court to consider whether 
its order should be modified in light of these 
questionnaires. 
DISCUSSION 
I. Probable Cause 
(1) In order to seize property under 18 
U.S.C. § 981, the government must demon-
strate that there was probable cause to be-
lieve that the property is subject to forfei-
ture. Marine Midland Bank N.A. v. Unit-
ed States 11 P.M 1119, 1124 (2d Clr.1993). 
In the context of the seizure of bank accounts 
allegedly forfeitable under f 981, 
(p)robable cause is established if the gov-
ernment can show that it has reasonable 
grounds, more than mere suspicion, to be-
lieve that, the property is subject to forfei-
ture. The government must be able to 
show a nexus between the illegal conduct 
and the seized property. The government 
is not required to link a bank account to a 
particular illegal transaction, but it must 
have probable cause to connect the account 
to criminal activity. 
Id. at 1126 (citations omitted). 
(2,3) Whether probable cause exists 
must be determined on the basis of the totali-
ty of the circumstances. United States v. 
Ceballos. 812 F2d a 
50 (24 Cir.1987). In 
the context of civil forfeiture proceedings, 
these circumstances are not limited to evi-
dence presented to the magistrate who is-
sued the warrant. 
United States v. .(492 
South Livonia Rd., 289 F.2.:1 1258, 1268 (24 
Cir.1989) ("Once a forfeiture proceeding is 
brought, if further evidence is legally ob-
tained to justify (a finding of probable cause), 
there is no persuasive reason to bar its 
use."). The findings supporting a district 
court's determination as to probable cause 
are reviewed for clear error, but the determi-
nation itself is a conclusion of law reviewed 
de nova United States v. Holder, 990 F.24 
1327, 1328 (D.C.Cfr.1993). 
l41 The mail fraud statute, 18 U.S.C. 
§ 1341, prcnides, in relevant part, that a 
person is guilty of mail fraud if, 
having devised or intending to devise any 
scheme or artifice to defraud, or for ob-
taining money or property by means of 
false or fraudulent pretenses, representa-
tions, or promises . .. for the purpose of 
executing such scheme or artifice or at, 
tempting so to do, (the person) places in 
any post office or authorized depository for 
mail matter, any matter or thing whatever 
to be sent or delivered by the Postal Ser-
vice. 
An essential element of mail fraud, and the 
element that is in dispute here, Is intent to 
defraud. See United States v. D'Amata 89 
FM 1249, 1256-57 (2(1 Cir.1994). In order 
to establish that the defendant acted with an 
intent to defraud, the government "must 
show that some actual harm or injury was 
contemplated by the schemer." Id. at 1267 
(internal quotations omitted). 
(5) In United States v. Regent Office 
Supply Co., 421 F2d 1174 (2d Cir.1970), we 
stated that an intent to defraud could be 
EFTA00191816

IN RE SEIZURE OF ALL FUNDS 
581 
Cheat' IF-Id 171 (Saar. I 1724) 
found in sales tactics that misrepresent the 
usefulness of an Item. Id at 1180. We 
asserted that: 
cases sustaining convictions for mail fraud 
have involved sales tactics and representa-
tions which have tended to mislead the 
purchaser, or prospective purchaser, as to 
the quality or effectiveness of the thing 
being sold, or to mislead him with regard 
to the advantages of the bargain which 
should accrue to him. Thus claims or 
statements in advertising may go beyond 
mere puffing and enter the realm of fraud 
where the product must inherently fail to 
do what is claimed for it. And promotion 
of an inherently useful item may also be 
fraud when the scheme of promotion is 
based on claims of additional benefits to 
accrue to the customer, if the benefits as 
represented are not realistically attainable 
by the customer. 
Id (internal quotations omitted). According-
ly, in order for sales tactics to rise to the 
level of mail fraud, misrepresentations must 
be material to the bargain that the customer 
is induced to enter into with the company. 
See id at 1182. 
In Regent, we held that the particular mis-
representations made by the salespersons 
were not material to the nature of the bar-
gain between the companies and the custom-
cm. Id In that case, customers bargained 
for office stationery, and, although misrepre-
sentations were made by the stationery com-
panies in order to gain the attention of the 
customers, the customers received the prod-
ucts for which they had bargained. Id at 
1180. Accordingly, such false claims were 
not material to the bargain between the cus-
tomers and the companies. 
We affirmed the conviction for mail fraud 
in United States v. Rota 66 F2d 741 (2d 
Cir.), cert. denied, 286 U.S. 654, 62 S.Ct. 679, 
76 L.Ed. 1289 (1932), involving a scheme to 
sell worthless land. Although the victims of 
the scheme did not prove that they had 
suffered any loss, this court held that the 
defendants had committed mail fraud be-
cause 
(a) man is none the less cheated out of his 
property, when he is induced to part with 
it by fraud, because he gets a quid pro quo 
of equal value. It may be impossible to 
measure his loss by the gross scales avail-
able to a court, but he has suffered a 
wrong; he has lost his chance to bargain 
with the (acts before him. 
/d at 749. In Regent, we noted that the 
"formulation of law stated in the Rowe deci-
sion" affirmed the proposition "that a wrong 
has been suffered when a man Is deprived of 
his chance to bargain 'with the facts before 
him' where the absent facts are facts materi-
al to the bargain he is induced thereby to 
enter." 421 F2d at 1182 (emphasis added). 
[6) In the present case, the government 
contends that the Companies' misrepresenta-
tions likewise were material to the bargain 
between the members and the Companies. 
The government argues that networking and 
the financial opportunities that networking 
might generate were the principal purposes 
for which the members had joined the Com-
panies' registries. According to the govern-
ment, the value of the networking, and hence 
the value of the membership, largely was 
dependent on the selection criteria and pro-
cesses used to choose the members. Since 
the Companies misrepresented these criteria 
and processes, the government argues, the 
false claims were material to the nature of 
the bargain between the members and the 
Companies, and therefore constituted mail 
fraud. 
The district court, however, found that the 
misrepresentations of the Companies did not 
rise to the level of mail fraud. The court 
stated that the bargain between the Comps. 
nies and the members entailed both 1) the 
purchase of "membership in a registry that 
the member will be listed in," and 2) the 
Companies' making available "other services 
or products that either accompany the pur-
chase free of charge" or are available to the 
members for a cost. In evaluating whether 
the Companies' sales tactics were material to 
this bargain, the court examined separately 
each of the nineteen misrepresentations al-
legedly made by the Companies. The court 
concluded that the misrepresentations did 
"not constitute a scheme or artifice to de-
fraud, either singly or in the aggregate. 
EFTA00191817

582 
68 FEDERAL REPORTER, 3d SERIES 
In making this determination, the district 
court largely relied on our description of 
fraudulent sales tactics in Regent and found 
that the sales tactics used by the Companies 
did not amount to mail fraud. Although the 
court determined that some of the Compa-
nies representations were "false or deceiv-
ing," it found that these representations were 
"not material to the bargain struck between 
the membership purchaser and the Compa-
ny." The court stated that the representa-
tions were "not directed at 'the quality, ade-
quacy or price of the goods,' nor (did) they 
concern facts 'essential in deciding whether 
to enter the bargain.'" Furthermore, the 
court found that the members "received ex-
actly what [they] paid for when they pur-
chased a membership," and that there was 
not a "discrepancy between benefits reason-
ably anticipated because of the misleading 
statements and the actual benefits which the 
defendant delivered, or intended to deliver" 
Accordingly, the court determined that the 
government had not shown that it had proba-
ble cause to believe that the Companies had 
committed mail or wire fraud. 
Although the court concluded that the 
Companies' misrepresentations were not ma-
terial to the bargain between the Companies 
and the members, we think that the court did 
not flatly evaluate the true nature of the 
bargain. The members had bargained with 
the Companies to join exclusive registries 
that would provide opportunities for net-
working among a prominent group of individ-
uals. 
Although the members did obtain 
membership in "selective" registries, they 
had bargained to join registries of a more 
exclusive nature than ones whose members 
merely were culled from mailing lists. As a 
result, this may be a different situation than 
that presented in Regent, where the consum-
ers received the products for which they had 
bargained. In the present case, membership 
in the registries may not have provided the 
members with the full networking capability 
that they expected to receive from the Com-
panies. On remand, the district court should 
re-examine, with the benefit of the informa-
tion provided by the new questionnaires, the 
nature of the bargain and the inducements 
that impelled the members to join and 
whether any misrepresentations were mate-
rial to the bargain. 
t 
The Injunction 
(71 The injunction ordered by the district 
court enjoined the government from mailing 
additional questionnaires to obtain further 
evidence of probable cause. This injunction 
was improper. In United States a Burzyn-
ski Cancer Research Inst., 819 F.2d 1301 (5th 
Cir.1987), cart denied, 484 U.S. 1066, 108 
S.Ct. 1026, 98 L.Ed2d 990 (1988), the Fifth 
Circuit held that "faIs an incident to the 
separation of powers founded in the Consti-
tution, the courts are not to interfere with 
the free exercise of the discretionary powers 
of the attorneys of the United States in their 
control over criminal prosecutions." 
819 
F2d at 1312 (internal quotation omitted); see 
also taRoucht v. Webster, 666 F$upp. 415, 
417 (S.D.N.Y.1983) (holding that the separa-
tion of powers prevents courts from interfer-
ing in federal criminal investigations except 
in the "rarest of circumstances"). We agree. 
In the present case, the injunction especially 
resulted in improper interference because, 
according to our decision in 4495 South Livo-
nia Rd, 889 12d at 1268, the government 
may use poet-seizure evidence at a probable 
cause hearing. 
On remand, the district court should allow 
the government to continue collecting ques-
tionnaires. We note that, after the vacatur 
of the injunction, the government redesigned 
its questionnaires in order to generate from 
the registry members information regarding 
the materiality of the misrepresentations. 
The district court, on remand, should consid-
er the responses to these questionnaires, 
along with the evidence previously intro-
duced, and reconsider whether the Compa-
nies' misrepresentations were material to the 
bargain between the Companies and the 
members. The totality of the circumstances 
should inform the district court's determina-
tion of probable cause. 
CONCLUSION 
For the foregoing reasons, we vacate the 
order of the district court and remand for 
EFTA00191818

U.S.' NELSON 
cite as 68 F 
593 (9nd Cir. 1993) 
further findings and reconsideration in actor- 
justice to grant transfer. 
dance with the foregoing. 
§ 6032. 
UNITED STATES of America, Appellant, 
I 
Lemrick NELSON, Jr., Defendant-
Appellee. 
No. 421, Docket 95-1271. 
United States Court of Appeals, 
Second Circuit. 
Argued Aug. 29, 1996. 
Decided Oct. 17, 1996. 
The United States District Court for the 
Eastern District of New York, David G. 
Trager, J., denied government's motion to 
transfer juvenile for adult prosecution. Gov-
ernment appealed. The Court of Appeals, 
Miner, Circuit Judge, held that: (1) juvenile's 
age at time of transfer proceeding should 
have been considered; (2) district court 
should have assumed juvenile committed of-
fense charged in information and not exam-
ined strength of government's evidence; (3) 
juvenile's conviction as adult for actions after 
alleged offense should have been considered; 
(4) "glimmer of hope" test for rehabilitation 
was explicitly rejected; and (5) finding re-
garding availability of programs designed to 
treat juvenile's behavioral problems was in-
adequate. 
Vacated and remanded. 
1. Infants 4=68.7(2) 
Juvenile alleged to have committed act 
after 16th birthday which, if committed by 
adult, would be felony that is crime of vio-
lence may be proceeded against as adult 
where district court, after transfer motion by 
Attorney General, finds it is in interest of 
583 
18 U.S.C.A. 
2. Infants .068.7(3) 
Burden is on government to establish 
that transfer of juvenile to adult status is 
warranted, as there is presumption in favor 
of juvenile adjudication. 18 U.S.CA § 5032. 
3. Infants .2=68.7(2) 
In determining whether transfer of juve-
nile to adult status would be in interest of 
justice, district court must consider, and 
make findings in record regarding, statutory 
factors of juvenile's age and social back-
ground, nature of offense alleged, nature and 
extent of any prior delinquency record, pres-
ent psychological maturity and intellectual 
development, juvenile's response to past 
treatment efforts nature of those efforts, and 
available programs designed to treat juve-
nile's behavior problems; factors need not be 
accorded equal weight by district court, and 
it may balance factors in any way that seems 
appropriate. 18 U.S.C.A. § 6032 
4. Infants 4=68.7(2), 68.8 
Decision of district court concerning 
transfer of juvenile to adult status is discre-
tionary and will not be disturbed except upon 
finding of abuse of discretion and court abus-
es its discretion when it fails to make re-
quired factual findings or where findings it 
makes are clearly erroneous; district court's 
interpretation of each statutory factor pres-
ents question of law, and Court of Appeals 
reviews interpretation de novo. 18 U.S.CA 
§ 5032. 
5. Infants dlors8.7(3), 68.8 
District court erred in refusing to con-
sider juvenile's age at time of transfer pro-
ceeding where juvenile was 20; unless gov-
ernment intentionally delayed filing of juve-
nile charges, there was every reason to give 
weight to age at time of transfer motion. 18 
U.S.CA § 5032. 
6. Infants az.68.7(2) 
In evaluating statutory factor concerning 
transfer of juvenile to adult status, while 
court correctly focused on juvenile's age of 
time of offense, but statutory factor specifies 
only "age" and current age was significant 
EFTA00191819

372 
945 FEDERAL REPORTER, 2c1 SERIES 
723, 79 L.Ed.2d 184 (1984) (listing alterna-
tive methods of exhausting federal consti-
tutional issues in state court without spe-
cifically referring to them in constitutional 
terms). Instead, they need only present 
the substance of a federal constitutional 
claim to the state courts in order to ex-
haust the issue and preserve it for review 
in a federal habeas corpus proceeding. Pi-
card V. Connor, 404 U.S. 270, 278, 92 S.Ct. 
509, 513, 30 L.Ed.2d 438 (1971). When a 
federal habeas petitioner presents what 
amounts to "a mere variation in the same 
claim rather than a different legal theo-
ry...." Wilk. v. Israel, 627 F.2d 32, 38 
(7th Cir.1980), cert denied, 449 U.S. 1086, 
101 S.Ct. 874, 66 L.Ed.2d 811 (1981), he has 
presented the state courts with the sub-
stance of his claims and thus has properly 
exhausted them. In Hutchins v. Wain-
wright, 715 F.2d 512 (11th Cir.1983), cert. 
denied, 465 U.S. 1071, 104 S.Ct 1427, 79 
L.Ed.2d 751 (1984), we concluded that a 
petitioner who had challenged the admis-
sion of certain out-of-court statements on 
state hearsay grounds had adequately 
presented and preserved a federal constitu-
tional claim concerning the violation of his 
Sixth Amendment right to confront the wit-
nesses against him. 
(III To the extent that defendant's con-
stitutional claim is based on the failure of 
the Florida court to follow Florida law, 
petitioner presented both the state and fed-
eral courts with the identical claim, namely 
that he had been convicted despite the pros-
ecution's failure to demonstrate each ele-
ment of the offense. In both forums, the 
only question is whether all of the elements 
of sexual battery under Florida law have 
been demonstrated in this case. CI Lani-
gan v. Maloney, 853 F.2d 40, 44-46 (1st 
Cir.1988), cert. denied, 488 US. 1007, 109 
S.Ct. 788, 102 L.Ed.2d 780 (1989) (objection 
to reasonable doubt instruction in state 
court sufficient to exhaust constitutional 
claim premised on same issue); Hawkins v. 
West, 706 F.2d 437, 439 (U Cir.1983) 
(same). As a result, we conclude that by 
contending that the trial court misapplied 
Florida law and allowed the jury to convict 
without the necessary showing of criminal 
intent, petitioner adequately raised and ex-
hausted in state court the federal due pro-
cess claim he now presents to this Court. 
AFFIRMED. 
Saul KENT, William Faloon, the Life 
Extension Foundation. Plaintiffs-
Appellants, 
v. 
James BENSON, Commissioner. Food 
and Drug Administration, U.S. Depart-
ment of Health and Human Services. 
Dexter Lehtinen, U.S. Attorney for the 
Southern District of Florida, Defen-
dants-Appellees. 
No. 90-5710. 
United States Court of Appeals, 
Eleventh Circuit. 
Oct. 22, 1991. 
Targets of federal grand jury investi-
gation involving inquiry about whether 
they and their companies had participated 
in criminal offenses involving distribution 
of prescription drugs without prescription 
and distribution of unapproved new drugs 
sued to enjoin grand jury proceeding and 
for advisory opinion from Food and Drug 
Administration (FDA) with respect to 
whether their activities were illegal. The 
United States District Court for the South-
ern District of Florida, No. 90-1603-CIV-
CCA, C. Clyde Atkins, J., dismissed com-
plaint. Plaintiffs appealed. The Court of 
Appeals held that: (1) targets of grand 
jury investigation were not entitled to en-
join grand jury proceeding or obtain adviso-
ry opinion from FDA with respect to 
whether their activities were illegal, and (2) 
appeal from dismissal of complaint was 
frivolous justifying imposition of economic 
sanctions. 
Affirmed. 
EFTA00191820

KEN 
CF. es 945 F 
T.1
2
1. Grand Jury 32.33 
Injunction 4=.105( 1 ) 
Targets of federal grand jury investi-
gation involving inquiry about whether 
they and their companies had participated 
in criminal offenses involving distribution 
of prescription drugs without prescription 
and distribution of unapproved new drugs 
were not entitled to enjoin grand jury pro-
ceedings or to secure advisory opinion from 
Food and Drug Administration with respect 
to whether their activities were illegal. 
Federal Food, Drug, and Cosmetic Act, 
§ 305, 21 U.S.C.A. § 335. 
2. Federal Civil Procedure e=2840
Appeal from district court's denial of 
suit to enjoin grand jury proceedings in-
volving plaintiffs and seeking advisory 
opinion from Food and Drug Administra-
tion with respect to whether plaintiffs' ac-
tivities were illegal was frivolous justifying 
imposition of economic sanctions including 
reasonable attorneys fees and double costs. 
Michael PIIMMO, Zuckerman, Speeder, 
Taylor & Evans, Humberto J. Pena, Guy A. 
Basco, Miami, Fla, for plaintiffs-appel-
lants. 
Richard Essen, Essen & Essen, P.A., 
North Miami Beach, Fla., for William Fa-
loon. 
Dexter W. Lebtinen, U.S. Atty., Miami, 
Fla., Barbara K. Bisno, Ant. U.S. Atty., 
Deborah S. Smolover, U.S. Dept. of Justice, 
Jacqueline H. Eagle, Office of Consumer 
Litigation, U.S. Dept of Justice, Washing-
ton, D.C., for defendants-appellees. 
Appeal from the United States District 
Court for the Southern District of Florida. 
Before KRAVITCH and EDMONDSON, 
Circuit Judges, and CLARK, Senior Circuit 
Judge. 
PER CURIAM: 
This is a frivolous appeal from the dis-
trict court's denial of plaintiffs' suit to en-
join the United States Attorney from con-
ducting a grand jury proceeding involving 
the plaintiffs. On or about April 9, 1990, 
appellants were advised by letter that they 
BENSON 
373 
Olds Ct. 1991) 
were targets of a federal grand jury inves-
tigation. The investigation involved an in-
quiry about whether plaintiffs and their 
companies had participated in criminal of-
fenses involving the distribution of pre 
scription drugs without a prescription and 
the distribution of unapproved new drugs. 
[1) The opening paragraph of appel-
lant's complaint describes their cause of 
action. 
This is an action in the nature of man-
damus and pursuant to Title 5, United 
States Code, Section 702, to compel 
James Benson, the acting Commissioner 
of Food and Drug Administration, to fol-
low his own statute, rules and regula-
tions and to give the Plaintiffs appropri-
ate notice and an opportunity to present 
information and views to show cause 
why criminal prosecution against them 
should not be recommended to the Unit-
ed States Attorney for the Southern Die 
trict of Florida. This action also seeks to 
compel the United States Attorney for 
the Southern District of Florida to re-
frain from pursuing a federal criminal 
grand jury investigation of Plaintiffs and 
attempting to secure Plaintiffs' indict-
ment until such time as James Benson, 
the acting Commissioner of Food and 
Drugs, has complied with the require-
ments of the Food and Drug Act and 
accompanying regulations. This Court 
has jurisdiction pursuant to Title 28, 
United States Code, Sections 1846 and 
1361. 
Record Excerpts at 2-1. 
The relevant statute is Title 21 U.S.C. 
§ 335, and provides: 
Before any violation of this chapter is 
reported by the Secretary to any United 
States attorney for institution of a crimi-
nal proceeding, the person against whom 
such proceeding is contemplated shall be 
given appropriate notice and an opportu-
nity to present his views, either orally or 
in writing, with regard to such contem-
plated proceeding. 
The district court diamiased the com-
plaint, holding that the court lacked the 
authority to grant relief. The appellants in 
effect were seeking an injunction of the 
grand jury proceeding and an advisory 
opinion from the Food and Drug Adminis• 
EFTA00191821

374 
945 FEDERAL REPORTER, 2d SERIES 
tration with respect to whether their activi-
ties were illegal. The court was obviously 
correct in dismissing the complaint. With-
out getting into a lengthy history of the 
statute, suffice it to say that it was enacted 
on June 30, 1906. The law has been twice 
interpreted by the United States Supreme 
Court to deny the relief sought by appel-
lants here. First, in United States v. Mor-
gan, 222 U.S. 274, 32 S.Q. 81, 56 L.Ed. 198 
(1911), the Court closed its opinion with the 
following sentence: 
There is nothing in the nature of the 
offense under the pure food law, or in 
the language of the statute, which indi-
cates that Congress intended to grant 
violators of this act a conditional immuni• 
ty from prosecution, or to confer upon 
them a privilege not given every other 
person charged with a crime. 
The Supreme Court confirmed this holding 
in United States v. Dotterweieh, 320 U.S. 
277, 64 S.Ct... 134, 88 L.F.d. 48 (1943). 
121 Appellants cite no authority to sup-
port the appeal of the district court order 
to this court and, of course, they have 
none. The arguments being without argu-
able merit, economic sanctions are in order•
including reasonable attorneys fees and 
double costs. Upon receipt of the mandate, 
the district court, after hearing, should de. 
termine the amount. See Hopson v. Fisch-
beck, 758 F.2d 579 (11th Cir.1985). 
AFFIRMED. 
H. POWELL. Plaintiff-
Appellant, 
I 
UNITED STATES of America, 
Defendant-Appellee. 
No. 90-6034. 
United States Court of Appeals, 
Eleventh Circuit. 
Oct. 22, 1991. 
Member of Church of Scientology filed 
complaint against Internal Revenue Service 
(IRS) seeking tax refunds on grounds that 
IRS inconsistently administered charitable 
deductions for quid pro quo payments to 
religious organizations. The United States 
District Court for the Southern District of 
Florida, No. 90-8271—CIV4LK, James Law-
realty Ring, J., granted a motion to dismiss. 
Church member appealed. The Court of 
Appeals, Dubins, Circuit Judge, held that 
church member's allegation of administra-
live inconsistency stated claim upon which 
relief could be granted. 
Vacated and remanded. 
1. Federal Courts 4 1494 
Court of Appeals must accept plain-
tiffs allegations as true when reviewing 
dismissal of complaint for failure to state 
claim. Fed.Rules Civ.Proc.Rule 12(bX6), 28 
U.S.C.A. 
2. Federal Civil Procedure 01772 
District court may dismiss complaint 
for failure to state claim only if it is clear 
that no relief could be granted under any 
set of facts that could be proved consistent 
with allegations. Fed.Rules Civ.Proc.Rule 
12(bX6), 28 U.S.C.A. 
3. Constitutional Law a=84.5(7) 
Allegations by member of Church of 
Scientology that Internal Revenue Service 
(IRS) inconsistently administered charitable 
deductions for quid pro quo payments to 
religious organizations on federal income 
tax returns stated cause of action for dis-
crimination among religions prohibited by 
establishment clause of First Amendment. 
26 U.S.C.A. § 170; Fed.Rules Civ.Proc. 
Rule 12(b)(6), 28 U.S.C.A.; U.S.C.A. Conan. 
Amend. 1. 
4. Constitutional Law 4=,84(I) 
Establishment clause of First Amend-
ment prohibits denominational preferences, 
including those created by discriminatory 
or selective application of facially neutral 
statute; Government may not discriminate 
among religions by applying or enforcing 
EFTA00191822

Page 1 of I 
Westlaw. 
AMJUR INJUNCTION § 180 
Page I 
42 Am. Jur. 2d Injunctions § 180 
C 
American Jurisprudence, Second Edition 
Database updated November 2007 
InJunsaggs 
Richard B. Gallagher, J.D., Timothy M. M, J.D., Gary A. Hughes, J.D, Steven 
D. Najarian, J.D., Jeffrey A. Schafer, J.D., and Jeffrey J. Shampo, J.D. 
III. Kinds of Rights Protected and Matters Controllable 
G. Acts of Public Bodies or Officials 
3. Enforcement of Statutes, Ordinances, or Administrative Orders 
b. Types of Laws 
Topic Summary; Correlation Table; References 
§ ISO. Criminal or penal statutes--Grand jury proceedings 
A grand jury cannot be enjoined from conducting lawful investigations and deliberations.[FN351 Thus, targets 
of a federal grand jury investigation involving an inquiry about whether they and their companies had participated 
in criminal offenses involving the distribution of prescription drugs without a prescription and distribution of 
unapproved new drugs were not entitled to enjoin grand jury proceedings or to secure an advisory opinion from 
Food and Drug Administration with respect to whether their activities were illegal. (F/436] The target of a federal 
grand jury investigation had an adequate remedy at law for any irregularity in the investigative process and was not 
entitled to injunctive relief to prevent the grand jury from returning an allegedly tainted indictment.[FN371 
(FN35) Ex pane Jones County Grand Jury, First Judicial Dist., 705 So. 2d 1308 (Miss. 1997). 
[F1436) Kent I. Benson, 945 F.2d 372 (11th Cir. 1990. 
[F1437) Blalock LU.S.,
 refill; denied, 856 F.2d 200 (11th Cr. 1988) and 
(distingured by, 
estin 
McDaniel, 760 F. Supp. 1563 (M.D. Ga. 1991)) and (disagreed with on other grounds 
by, Finn 
Schiller, 72 F.3 1182 (4th Cir. 1996)). 
0 2007 Thomson/West 
AMJUR INJUNCTION § 180 
END OF DOCUMENT 
O 2007 Thomson/West. No Claim to Orig. US Gov. Works. 
hups://web2.westlaw.com/print/printstreantaspx?sv—Full&prft=HTMLE8cmt=FederalGo... 12/27/2007 
EFTA00191823

US. I BURZYNSKI CANCER RESEARCH INSTITUTE 
1301 
dose 819 Fad 1301 (331. CAr. 1987) 
EDITH H. JONES, Circuit Judge, con-
curring: 
I write separately to emphasize what I 
believe is most salient in the majority's 
careful exposition of 28 U.B.C. §§ 2680(a) 
and (h): these sections of the FTCA must 
be harmonized. In achieving harmony, a 
task made no simpler by Congress's drafts-
manship and the sketchy legislative history 
of the law enforcement proviso, it is not 
necessary to conclude with the majority 
that "even Divots and Collinsville would 
not pass muster" if the law enforcement 
proviso, § 2680(h), is subject to the discre-
tionary function exception, § 2680(a). As 
the majority elsewhere observe, this court 
has held that violations of agency regula-
tions do not fall within the discretionary 
function exception so as to immunize the 
federal government from tort liability. 
See, e.g., Collins v. United States, 783 
F.2d 1225 (5th Cir.1986). 
What I believe will require particular 
sensitivity in this task of statutory con-
struction is preserving prosecutorial and 
discretionary law enforcement immunity. 
Compare Smith v. United States, 375 F.2d 
243 (5th Cir.), cert. denied, 889 U.S. 841, 88 
S.Ct. 76, 19 L.Ed.2d 106 (1967) (decisions on 
when, where and against whom to prose-
cute are discretionary under § 2680(a)); 
Cray v. Beg 712 F.2d 400, 505 (D.C.Cir. 
1988) ("Although the concepts of 'discre-
tion' in official immunity law and under the 
FTCA are not of identical scope, they are 
similar and may have a common origin"). 
In law enforcement, while the opportunities 
for government abuse abound, the incen-
tive for oppressive use of FTCA lawsuits is 
powerful and pervasive. What better way 
to "get even" with one's accuser than t
file suit against the government on account 
of hi investigatory conduct? Such law-
suits are hardly less deleterious to consci-
entious law enforcement than are actions 
seeking to impose personal liability, be-
cause they equally threaten careen and 
reputations, divert official time and re-
sources, and imperil impartial decisionmak. 
ing. The doctrines of absolute prosecutori-
al and qualified official immunity from per-
sonal liability axe essential to shield the law 
enforcement community from unwarranted 
interference with their vital functions. See 
flarlow v. Fitzgarakl, 457 U.S 800, 808, 
102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). 
The discretionary function exception to the 
Federal Tort Claims Act should perform a 
similar role as the courts continue to inter,
pret the law enforcement proviso. 
The 
panel's use of the Elliott v. Perez pleading 
standard in cases involving §§ 2680(a) and 
(h) is a step in the direction of creating the 
necessary harmony. 
UNITED STATES of America, Plaintiff-
Counter Defendant-Appellee, 
U 
BURZYNSKI CANCER RESEARCH IN-
STITUTE. et at, Defendants-Counter 
Plaintiffs-Appellants 
and 
Janice Kuharzyk, and Other Patients of 
Dr. Stanislaw It Surzynski, et al. In-
tervenors-Counter 
Plaintiffs-Appel-
lants. 
No. 86-2183. 
United States Court of Appeals, 
Fifth Circuit 
June 25, 1987. 
Action was brought against physician 
and research center seeking to enjoin them 
from violating Federal Food Drug, and 
Cosmetic Act by interstate distribution of 
product used in cancer chemotherapy, anti-
neoplastons, on ground that they were 
"new drugs" within meaning of Act, and 
were being distributed without prior ap-
proval by Food and Drug Administration. 
Government also sought to enjoin manufac-
turer in distribution of antineoplastons on 
ground that drugs were adulterated within 
meaning of Act. Physician's patients were 
permitted to intervene. After execution of 
EFTA00191824

1302 
819 FEDERAL REPORTER, 2d SERIES 
criminal search warrant, physician filed 
counterclaim seeking damages, injunctive 
relief, and contempt orders against Govern-
ment and certain FDA employees. 
The 
United States District Court for the South-
ern District of Texas, Gabrielle K. Mc-
Donald, J., dismissed counterclaims, and 
appeal was taken. The Court of Appeals, 
Alvin B. Rubin, Circuit Judge, held that: 
(1) claims under Federal Tort Claims Act 
required, as jurisdictional prerequisite, ad-
ministrative review; (2) employees involved 
in obtaining criminal search warrant were 
entitled to immunity from common law and 
constitutional tort claims; (3) physician and 
patients were not entitled to return of 
seized patient records; (4) physician and 
patients were not entitled to injunction 
against use of records; (5) physician and 
patients were entitled to develop facts to 
support their claim to injunctive relief with 
respect to Government's allegedly provid-
ing insurance companies with false and 
misleading information; and (6) Govern-
ment complied with obligations under per-
manent injunction and, thus, it and its em-
ployees were not in contempt. 
Affirmed in part, reversed in part, and 
remanded. 
1. Federal Civil Procedure em1957 
District court did not, in electing not to 
restate, in its dismissal order, legal analy-
sis it had already set forth in denial of 
preliminary motions for a temporary re-
straining order, return of property, and 
contempt, conduct trial on merits, much 
less impermissibly consolidate trial with 
hearing on preliminary motions. 
2. Federal Civil Procedure .3251836 
Order denying preliminary motion for 
a temporary restraining order, return of 
property, and contempt, and order dismiss-
ing action, taken together, adequately 
presented full review of actions taken by 
district court and its reasons therefor; dis-
trict court elected not to restate in its dis-
missal order legal analysis it had already 
set forth in its denial of preliminary mo-
tions. 
3. United States ea127(2) 
Failure of physician and patients, as-
serting claim under Federal Tort Claims 
Act in connection with seizure of patient-
treatment records during fraud and drug 
investigation pursuant to criminal search 
warrant, to file administrative claim for 
relief required that claim be dismissed, in 
that administrative review was jurisdiction-
al prerequisite under Act; it would not 
have been appropriate merely to stay suit 
until claim could be filed once issue was 
raised. 28 U.S.CA. ft 1846, 2671 et seq. 
4. Federal Civil Procedure ex.2533 
Affirmative defense may be raised on 
motion for summary judgment only if that 
motion is first pleading responsive to sub-
stantive allegations. Fed.Rules Civ.Proc. 
Rule 8(c), 28 U.S.C.A. 
6. Federal Civil Procedure a1823, 2632 
None of Government's initial filings 
was responsive "initial pleading," such as 
would preclude, due to waiver, raising af-
firmative immunity defenses on part of in-
dividual government employees in motion 
to dismiss or for summary judgment. Fed. 
Rules Civ.Proc.Rule 8(c), 28 U.S.C.A. 
6. United States 4=50.6(3) 
Federal employees are absolutely im-
mune from common-law tort suits for dam-
ages arising out of performance of either 
mandatory or discretionary acts that are 
within outer perimeter of their line of 
duties; immunity extends even to allegedly 
malicious acts. 
7. United States e=60.10(3) 
Activities of federal employees with 
respect to application for and execution of 
criminal search warrant, pursuant to which 
physician's patient-treatment records were 
seized, were within scope of their duties 
and, therefore, employees wore absolutely 
immune from suit for common-law torts 
allegedly committed in connection with 
search warrant 
8. United States 4=50.10(3) 
Federal employees involved in obtain-
ing and executing warrant for search of 
business premises occupied by physician 
were entitled to qualified immunity shield-
EFTA00191825

U.S. v. BURZYNSICI CANCER RESEARCH INSTITUTE 
cmurn FM 1301 (31bar. 19.7) 
mg them from liability for their acts with 
13. Injunction 0.106(1) 
respect to constitutional tort claims of phy-
sician and patients; employees followed es-
tablished constitutional procedures and vio-
lated no norms of clearly established law. 
ConstAmends. 4, 5, 8. 
9. Searches and Seizures wo.26. 160 
Witnesses 4=0212 
Patients had no legitimate expectation 
of privacy in records maintained by physi-
cian that could be asserted against criminal 
search warrant and, thus, no standing to 
seek return of records; under Texas law, 
seizure pursuant to search warrant issued 
as part of criminal investigation was ex-
empt from physician-patient privilege. 
Vernon's Ann.Texas Civ.St. art. 44956, 
§ 5.08(6) (Repealed); Fed.Rules Cr.Proc. 
Rule 41(e), 18 U.S.C-A. 
10. Searches and Seizures 4=450 
Physician and patients alleged no basis 
on which it could be found that seizure of 
patient-treatment records pursuant to crim-
inal search warrant was unlawful, such as 
would entitle them to obtain return of 
records. FecLRules Cr.ProcSule 41(e), 18 
U.S.C.A. 
11. Injunction O.105(1) 
District court could not enjoin Govern-
ment in its use of patient-treatment records 
seized, pursuant to criminal search war-
rant, from physician's business, absent alle-
gation of any improper use of seized 
records by Government 
12. Injunction O.105(1) 
Government would not be enjoined 
from communicating with 
physician's 
present and former patients and their in-
surance carriers, in connection with seizure 
of patient-treatment records pursuant to 
criminal search warrant, in that such in. 
junction would interfere with free exercise 
of discretionary powers of attorneys of the 
United States in their control over criminal 
prosecutions; injunction would have imped-
ed or totally frustrated Government's abili-
ty to pursue its investigation of, among 
other things, interstate distribution of anti-
neoplastons, fraudulent over-billing and 
double-billing of insurance companies, and 
false statements to Government 
1303 
Allegations of unlawful seizure of pa-
tient-treatment records could not form cog-
nizable basis for claiming that Government 
had é would interfere impermissibly with 
physician's treatment of patient's solely 
within State of Texas, such as would entitle 
physician and patient's to injunctive relief 
against interference; there was simply no 
geniune issue of such threat raised. 
14. Administrative Law and Procedure 
4=0232 
Drugs and Narcotics 0.23 
Physician failed to make good-faith ef-
fort to obtain investigational new drug sta-
tus for antincoplastons from FDA and to 
exhaust administrative remedies with re-
spect to application, and, therefore, he 
could not be entitled to injunctive relief 
against government's interfering with his 
treatment of patients with antineoplastons 
by refusing to grant IND status to drug. 
15. Drugs and Narcotics 4=10 
Failure to allege facts establishing 
that investigational new drug status was 
improperly withheld from antineoplastons 
precluded patients' indirect challenge to 
FDA action, based on allegations that their 
constitutional right to travel freely be-
tween states was being infringed. 
16. Drugs and Narcotics rtz>23 
Patients had no claim for injunctive 
relief against Government's interference 
with interstate distribution of antineopla-
stens based on asserted constitutional right 
to obtain medical treatment that was en-
compassed by the right to privacy. 
17. Injunction 4=105(1) 
Physician and patients were entitled to 
develop facts that could entitle them to 
injunctive relief with respect to claim that 
Government provided insurance company's 
with false and misleading information, giv-
en finding that at least two statements by 
government employee in response to in-
quiries about physician and his treatment 
were nearly inappropriate, exceeded his 
duties and responsibilities as officer of 
EFTA00191826