Case o' The Week: Ninth Takes Stand, Non-Contraband - Gladding and Rule 41(g) Motions, Return of Property in Child porn cases
The federal government of
the United States can simultaneously process and analyze millions of text
messages and emails in its vast, secret server farms.
It can probably manage C:\dir
> print.txt
United States v. Gladding, 2014 WL 7399113 (9th Cir. Dec.
31, 2014), decision available here.
Hon. Judge Carlos T. Bea |
Players:
Decision by Judge Bea, joined by Judges O’Scannlain and Fernandez.
Notable win
by AFPD Carolyn Wiggin, ED California FPD.
Facts: Gladding was convicted of possession of child porn. Id. at *1. He conceded that the seized
computers should be forfeited under 18 USC § 2253. Id. However, Gladding asked for the return of copies of
noncontraband computer files –personal pictures of his family, and email. Id.
The government agreed to do so at
the change of plea, but when negotiations broke down later Gladding filed a
motion to return the noncontraband files under Fed. Rule Crim. Proc. 41(g). Id. When the issue still wasn’t resolved
at sentencing, the court directed the parties to work together and identify the
files to return; but still no agreement. Id.
Gladding filed a second 41(g) motion. The government attached to its opposition
a listing of some of the noncontraband files, an email correspondence chain,
and a transcript of a hearing on a similar case. “None of the exhibits
established the burden or cost to the government of segregating contraband from
noncontraband computer files.” Id.
After
three hearings, the district court denied the motion: Gladding appealed. Id. at *2.
Issue(s): “Criminal who possess child pornography are no
different [from those who store every aspect of their lives on personal
devices]. Those criminal may likewise store important aspects of their lives on
their electronic devices. But along with the normal risks of losing their
personal data, such criminals also risk losing that personal data when the
government seizes their devices for evidence of child pornography. To that end,
this case requires us to address when a criminal defendant is entitled to the
return of his personal computer files when he has intermingled those files with
his child pornography files.” Id. at
*1.
Held: “The government
failed to submit any evidence of the difficulty and cost of segregating Gladding’s
data, which it claimed was a ‘legitimate reason’ for retention of the contraband
files. For that reason, the government could not have carried its burden of
proof had the district court correctly placed it on the government. The
district court’s decision not to put the burden of proof on the government was
legal error. We remand for the court to apply the correct burden in the first
instance.” Id. at *3.
Of Note: This terrific brief opinion clearly lays out the shifting burdens associated with Rule 41(g). Judge Bea explains that before
conviction, the burden of proof lies on the defendant (while the property may
still have evidentiary value). Id. at
*2. But, when the property is no longer needed for evidentiary purposes, “the
defendant is presumed to have a right to the property’s return, and the
government has the burden of demonstrating that it has a legitimate reason to
retain the property.” Id. at *2
(quotations and citation omitted).
The decision then discusses the “legitimate
reasons” the government may have to retain the property – but emphasizes the
government bears the burden of proving those reasons. Id. A useful and accessible primer on Rule 41(g) – worth a close read
when fighting for the return of client’s property.
How to Use:
What happens on remand? Judge Bea suggests several practical solutions. The
government could just cough up the files, if it fails to prove cost concerns in
segregating the files. Id. at *4. Gladding
could pay the cost of segregation of the non-contraband files. Id. The court could also order the
government to create a printed directory of the devices, to help identify non-contraband
files. Id. at *4. These suggestions
are a useful start for negotiated return of property, given the Ninth’s imprimatur.
For Further
Reading: Is it IAC, in a child porn case, not
to argue at sentencing that the child porn guidelines (uniquely) do not reflect
the Sentencing Commission’s judgment? Maybe. For a remarkable dissent
lambasting the child porn guidelines, see United
States v. Walters, No. 14-3097 (6th Cir. Jan. 2, 2015) (Merritt, CJ,
dissenting) available here.
Equally interesting is Judge White’s concurrence, (nearly) inviting a Section
2255 petition for IAC when defense counsel didn’t raise this argument.
Image
of the Honorable Judge Carlos T. Bea from http://www.up.edu/shownews.aspx?id=5061
Steven
Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
.
Labels: Bea, Child Pornography, Fed. R. Crim. Proc. 41
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