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In re Grand Jury Proceedings

decided as amended august 16 1979.: July 18, 1979.

IN RE: GRAND JURY PROCEEDINGS; FMC CORPORATION, APPELLANT


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Misc. No. 77-87)

Before Hunter, Weis and Garth, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

In April or May, 1977, FMC Corporation produced a number of documents in response to a subpoena Duces tecum issued by a federal grand jury sitting in Philadelphia. Alleging that the government had filed a false Schofield affidavit*fn1 and had violated Fed.R.Crim.P. 6(e) by disclosing the documents to unauthorized persons, FMC asked for return of the documents. After argument, the district court denied the motion, and FMC appealed. We conclude that the order is nonappealable and must be dismissed because of a lack of jurisdiction.

Certain exceptions notwithstanding, Congress and the federal courts have announced and adhered to a policy of permitting appeals only from the final decisions of district courts. 28 U.S.C. ยง 1291; Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783 (1940). In the grand jury context, nongovernment appeals of technically nonfinal decisions have been closely limited to orders denying motions for the return of property. DiBella v. United States, 369 U.S. 121, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962). But as we observed in United States v. Premises Known As 608 Taylor Avenue, 584 F.2d 1297, 1300 (3d Cir. 1978), the question whether a motion is for the return of property or whether it is for the suppression of evidence, and thus nonappealable, must be resolved by examining the essential character of the proceedings in the district court. It is not disputed that although the grand jury proceedings were at a standstill for a time, they have been resumed, and the conduct of FMC is still the subject of inquiry. There is obviously the possibility of a criminal prosecution against the corporation and it cannot be said that the motion ...


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