Sunday, January 04, 2015

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

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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