Appeal from an Order of the District Court From the Eastern District of Pennsylvania Denying Motion for Return of Property in Criminal No. 01-694-01 United States District Judge Herbert J. Hutton
Before: McKEE and Smith, Circuit Judges,
and Cowen, Senior Circuit Judge
The opinion of the court was delivered by: McKEE, Circuit Judge.
On Petition for a Writ of Mandamus From the Eastern District of Pennsylvania (Related to Crim No. 01-cr-694)
Jerry Pantelidis appeals from the district court's order denying his motion for return of property filed under Fed.R.Crim.P. 41(e). He claims that he is entitled to the return of certain funds escrowed pursuant to the terms of a non-prosecution agreement. However, since we conclude that the agreement is ambiguous, we will vacate the district court's order and remand for further proceedings so that the district court can resolve the ambiguity.
I. FACTS AND PROCEDURAL HISTORY
On November 5, 2001, a federal grand jury returned an indictment charging Jerry Pantelidis with seven counts of making false statements to federally insured financial institutions, in violation of 18 U.S.C. § 1014, two counts of bank fraud, in violation of 18 U.S.C. § 1344, one count of making a false oath in a bankruptcy proceeding, in violation of 18 U.S.C. § 152(2), and one count of use of a false social security number, in violation of 42 U.S.C. § 408(a)(7). The false statement and bank fraud counts charged that Pantelidis advanced his real estate business interests by making false and fraudulent statements, including: fraudulently creating fictitious income tax returns claiming inflated income amounts; creating false financial statements; and making false declarations of income and assets in order to secure bank loans and lines of credit totaling in excess of $3.5 million, and to secure credit cards and a car lease. The indictment further alleged that Pantelidis earned hundreds of thousands of dollars profit from the acquisition, development and resale of properties which Pantelidis purchased using fraudulently obtained financing. The indictment also contained a notice of forfeiture concerning $637,411.40 in proceeds obtained directly or indirectly from the violations of 18 U.S.C. §§ 1014 and 1344, and a notification of the government's intention, if necessary, to seek forfeiture of substitute assets, up to the value of the property subject to forfeiture.*fn1
According to the government, the amount of the funds in the notice of forfeiture in the indictment, viz., $637,441.40, represents the total net proceeds Pantelidis realized from the sale of two buildings he purchased or improved using the fraudulently obtained funds. Those buildings were located at 311 S. Juniper Street and 1315 Walnut Street in Philadelphia. This appeal also involves proceeds derived from the sale of the Barclay Hotel in Philadelphia.
A. 311 S. Juniper Street.
Count Two of the indictment charged that Pantelidis made false statements to Regent National Bank to obtain a $500,000 loan to purchase and improve upon a property at 311 S. Juniper Street, in violation of 18 U.S.C. § 1014. The indictment alleged that in late 1994 Pantelidis supplied the bank with copies of his federal income tax returns for the years 1991, 1992 and 1993, on which returns he claimed adjusted gross income of $107,706, $133,675 and $162,423, respectively. The indictment further alleged that Pantelidis had not filed federal income tax returns during those years, and that the returns he furnished to the bank were fictitious and contained inflated income. According to the government, Pantelidis's actual federal income tax returns for those years, filed with the IRS in April 1995, showed true income during 1991, 1992 and 1993, of minus $9,996, minus $34,878, and minus $59,908, respectively.
On February 3, 1998, Pantelidis's company, 311 S. Juniper Street, Inc., sold the property on Juniper Street. The proceeds check from the sale of the property, $263,901.40, was seized by the government pursuant to a seizure warrant executed at the real estate closing. The indictment seeks the forfeiture of these alleged proceeds of the § 1014 violation. The proceeds are currently worth $87,973, as will be explained later.
Count Three charged that Pantelidis defrauded Regent National Bank, while attempting to obtain a $1,300,000 secured line of credit to pay delinquent taxes and make capital improvements to a property at 1315 Walnut Street, in violation of 18 U.S.C. § 1344. The indictment alleged that Pantelidis supplied the bank with a personal financial statement dated May 10, 1995, in which he claimed to have filed federal income tax returns for the years, 1991, 1992 and 1993. The indictment alleged that Pantelidis made the claim knowing that Regent would rely on the fictitious income tax returns he had previously given the bank in connection with the Juniper Street property. The indictment further alleged that Pantelidis did not give the bank his true 1991, ...